In a previous ruling, Homemark Pure Magic Spa / HA Steinman / 13961 (FAC), Homemark was not able to substantiate this product, and the FAC agreed that Homemark continues to abuse the ASA regulations and therefore imposed a 6 months pre-clearance on them. In other words, for every advertisement, Homemark has to submit, at their own cost, their advert and copy for checking.
Homemark appealed, arguing among other, that they should not be held to the same regulations as other marketers. The ASA did not agree.
Homemark Pure Magic Spa / HA Steinman / 13961 (FAC)
|Ruling of the : ASA Appeal Committee|
|In the matter between:|
|Homemark (Pty) Ltd||Complainant(s)/Appellant(s)|
|Dr Harris Steinman||Respondent|
24 Mar 2010
In this matter, Homemark flighted an advertisement for a foot spa, claiming that it resulted in a number of beneficial health effects, such as on stress and detoxification. The Respondent complained that the advertisement had been flighted without any substantiation. The Appellant replied by advising that it had withdrawn the advertising for the product and had taken the decision to discontinue the product. It gave a voluntary undertaking that the product would not be on sale in Homemark stores after 31 December 2009.
At the hearing before the Advertising Standards Committee (ASC), the Appellant explained that in terms of its business model, it introduced approximately 40 products per annum into the market and in general, half of these proved not to be commercially viable and were withdrawn, as was the case in regard to the foot spa.
The Committee then considered the history of undertakings given by the Appellant, as well as a number of adverse rulings which had been made by the ASA against the Appellant and concluded that the repeated giving of undertakings was unacceptable. The Appellant was well aware that, in terms of Clause 4.1 of Section II of the Code, it should be in possession of substantiation before launching a product.
The ASC consequently concluded that all the Appellant’s advertising should be submitted for pre-clearance. Accordingly, on 19 November 2009, it ruled that all advertising by the Appellant for all products should be submitted to the Association for Communication and Advertising (ACA) for pre-clearance for a period of six months from the date of its ruling in terms of Clause 14.3 of the Procedural Guide. The Appellant appealed to this Committee against that ruling.
In dealing with the rulings relied on by the ASC, the Appellant pointed out that not in every case had there been an adverse finding against it and not in every case had there been undertakings which had not been honoured. It had also become extremely difficult to secure substantiation from experts. It also claimed that experts did not want to give evidence with the Respondent involved, as they became subject to “vitriolic condemnation and even active intimidation from that source”. The Appellant also argued that the Respondent should not be regarded as a consumer as defined in the Code, but as a professional advertiser, as he was running a business which dealt with allergies. In effect, he was a competitor of the Appellant.
In the ASA Code, consumer refers to any person who is likely to be reached by or exposed to an advertisement. This includes an end consumer, user or trade customer. It is clear that the Respondent is likely to be reached by or exposed to such an advertisement and is a consumer. A competitor complaint means complaints lodged by or on behalf of a commercial entity or individual with a commercial interest concerning compliance, with a code by a commercial entity. While the Respondent runs a business concerning allergies called “FACTS”, there is no evidence that he is an individual with a commercial interest concerning compliance with the Code. Further, the Respondent was not given notice that this issue would be raised on appeal and the Respondent was not present at the appeal.
On the facts and circumstances of this case, we have concluded that the Respondent is a consumer for the purposes of this matter.
Accepting all the criticisms of the Appellant against the rulings relied on by the ASC, the Appellant has a history of complaints being made against it in regard to its products and in several matters there have been adverse rulings by the ASA against the Appellant. The Appellant has described the Respondent as a serial complainant, but ignores the fact that it is a serial respondent and has been at the receiving end of many adverse rulings over the years.
The sanction applied by the ASC in all the circumstances does not induce any sense of shock into the Appeal Committee. We see no reason to interfere with the sanction imposed by the ASC.
As the only issue on appeal was the ASC’s sanction, the appeal is dismissed. All advertising by the Appellant for all products should be submitted to the ACA for pre-clearance for a period of six months from the date of this ruling, in terms of Clause 14.3 of the Procedural Guide to the Code.