Posted: 29 March 2010
In spite of a previous ruling against Homemark regarding the unproven claims for SlimCoffee, they continued selling the product in Makro stores. Homemark claimed it was an error. The ASA, showing amazing due diligence, investigated and found Homemark appeared to have done this deliberately! Surprised? I am not.
Homemark Slim Coffe / HA Steinman / 12988
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman – Complainant(s)/Appellant(s)
Homemark (Pty) Ltd – Respondent
15 Mar 2010
In Homemark Slim Coffee / HA Steinman / 12988 (29 April 2009), the Directorate ruled that weight loss claims made by the respondent for its Slim Coffee product were unsubstantiated. The Directorate did not accept the expert put forward by the respondent, Dr Beverly Summers, as an independent, credible expert in the field relating to weight loss products or dietary supplements.
The respondent was instructed to withdraw the claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not to use the claims again in future.
Subsequent to the above ruling, the respondent appealed to the Advertising Standards Committee (the ASC). In a ruling dated 2 September 2009 the ASC dismissed the appeal and upheld the Directorate ruling.
On 21 September 2009 the respondent was found in breach of the previous rulings, as it continued to stock the product in its own stores subsequent to the deadlines applicable. No sanctions were imposed on the respondent at that time.
SUBSEQUENT TO THE RULING OF 29 APRIL 2009
On 9 December 2009, the complainant lodged a breach allegation against the respondent’s Slim Coffee packaging seen at Makro in Montague Gardens. He submitted that the packaging and the claims are exactly the same as previously ruled against by the ASA.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.
The respondent submitted that it has no control over retail chains such as Makro.
The complainant is well aware that the respondent can only withdraw products from its own stores only and this has been done many months ago. There would be some “left over” units in retail chains where it has no control over.
COMMENTS FROM MAKRO
The Directorate requested clarity from Makro as to when last it received stock for this item from the respondent.
The General Merchandise Director of Makro submitted that, whilst the respondent has no control over retail chains, it must be noted that Makro expected to be fully informed by the respondent that its product has been ruled against.
An investigation was done internally and no communication or correspondence from the respondent was found in that regard. Makro’s records indicated that the product was last delivered to some of its stores during the first and second week of November 2009. Its total current stock holding on the product is 85 units spread over 13 stores.
ADDITIONAL COMMENTS FROM RESPONDENT
The respondent was given an opportunity to comment on Makro’s submissions. It submitted that prior to the 29 April 2009 ruling on Slim Coffee, it used to sell many thousands of units of this product in its shops and to the retail chains. It stopped advertising and selling the product by July / August 2009 as the ASA is aware.
Unfortunately, for some reason, some deliveries took place to Makro stores in the last few months of 2009 until November 2009 and a total of 64 units were sold during this period. The respondent stated that it has now uplifted all unsold units from all Makro stores. It apologised for the irregularity and stated that there was breakdown in its procedures, which have now been addressed. It was more of an omission than the active approach to promote sales.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
While the respondent has now taken steps to remove its Slim Coffee products from Makro stores, this action is belated. It appears to be common cause that the breach occurred. In fact, given that the original ruling was issued on 29 April 2009, the respondent had until 29 July to stop disseminating any stock. From the submissions at hand, it continued disseminating until November 2009.
The respondent attributes this breach to the fact that there was a “breakdown of procedures”. It stated that it was an omission on its part and not an active approach to promote sales.
In Homemark Slim Coffee / Ha Steinman / 12988 (21 September 2009), the Directorate specifically noted that “… the respondent, as a large and experienced advertiser should have made concerted effort to comply with the Directorate ruling. There is no evidence to show that instructions to withdraw or comply were issued in respect of packaging”.
The same applies here. Had the complainant not filed a breach allegation and had Makro not confirmed that it took delivery of these products for nearly four months after the applicable deadlines, Slim Coffee units would probably still be on sale at Makro. The Directorate also notes that this is the second breach of the original ruling (refer Homemark Slim Coffee / HA Steinman / 12988 (21 September 2009) for other example).
In light of the above, the respondent is again in breach of the Directorate ruling of 29 April 2009 and therefore again in breach of Clause 15 of the Procedural Guide.
The respondent is again instructed to withdraw all advertising of this product from all media and distribution channels in accordance with Clause 15.3 of the Procedural Guide.
Ordinarily, the Directorate would consider whether or not to impose sanctions on the respondent for this repeated breach. However, in Homemark Pure Magic Spa / HA Steinman / 13961 (19 November 2009) the ASC imposed a six month pre-clearance sanction on the respondent in terms of Clause 14.3 of the Procedural Guide. The respondent appealed this ruling to the Final Appeal Committee, which appeal is due to be heard in March 2010.
In addition, the respondent appealed ASC ruling of 2 September 2009, which reaffirmed the Directorate’s ruling dated 29 April 2009 in the current matter. This appeal is also scheduled to be heard in March 2010.
The Directorate, therefore, will not consider the issue of sanction at this time because of the pending appeals with the Final Appeal Committee. Once the Final Appeal Committee has handed down its rulings, the question of sanctions will be revisited.