A complaint was laid with the ASA that Hoodia Slender Gel had continued to make misleading, unsubstantiated claims regarding the efficacy of this product – the complaint pointed out that there is NO evidence that this product works at all. The ASA agreed and ruled against respondent.
|Hoodia Slender Gel / HA Steinman / 12857|
|Ruling of the : ASA Directorate|
|In the matter between:|
|Dr Harris Steinman||Complainant(s)/Appellant(s)|
|Planet Hoodia cc||Respondent|
02 Nov 2009
BACKGROUND In a ruling dated 9 September 2009, the Directorate ruled that the respondent was in breach of its earlier ruling dated 2 February 2009, as claims similar to those originally ruled on were still made on window displays, inter alia, at the Waterfront Pharmacy. The complainant and the respondent were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted comments concerning the efficacy of the product in addition to comments on sanctions, and argued that there is simply no scientific evidence that any of the ingredients in this product has any efficacy when taken orally, much less so when absorbed through the skin. The respondent has scant regard for the ASA and its rulings, given that several pharmacies still have large displays prominently promoting unproven claims. No attempt had been made to remove the display from the window. The complainant added the respondent’s CEO concocted a mixture of these ingredients without giving a shred of evidence to confirm these claims.
The complainant requested the harshest sanctions possible; a media campaign where the respondent is forced to state clearly and unequivocally that there is no evidence at all that the ingredients in Hoodia Slender Gel are absorbed through the skin, that Hoodia per se, and that Hoodia Slender Gel has not been proven to have any efficacy, and that the product’s claims to result in “massive weight loss” are simply unfounded. The complainant also took issue with other claims relating to the product’s alleged absorption through the skin and its general mode of action. None of these newly referenced claims have previously been complained of or considered.
RESPONSE The respondent submitted that the complainant’s call for “harshest sanctions” possible is totally inappropriate and unfounded in this case, as the complainant’s argument is flawed, misguided and lacks objectivity. It added that the breach ruling related to the matter of certain retailers still displaying promotional material despite the initial ASA ruling on the matter and its undertaking at that time to amend its promotional materials.
It again emphasised that it supplies a network of close to a 1 000 retailers countrywide, all of whom carries the respondent’s promotional materials. The size of the network, along with the financial and logistical implications, makes the removal or amendment of all promotional materials countrywide a very difficult task. The offending promotional displays at the relevant pharmacies have now been totally removed until suitable material can be inserted as a replacement. They were removed within two week deadline set by the ASA in its ruling of 9 September 2009.
In other words, they were removed by 23 September 2009. It instructed all relevant parties, who act as representatives at store level on its behalf, that offending marketing materials need to be removed as a matter of priority. A copy of the latest email to the agents was attached. Furthermore, it does not see the relevance of the complainant’s argument regarding the efficacy of its product, as well as personal attack on the character of the CEO. It has continuously demonstrated a willingness to work with the ASA to ensure that its advertising and promotional materials meet the required specification and regulations. Any sanctions at this stage would be inappropriate.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties. Firstly, it must be emphasised that the ASA has no jurisdiction over the nature or legitimacy of the respondent’s business. Such concerns are best addressed through avenues such as the Department of Trade and Industry or perhaps the Medicines Control Council. Secondly, the complaint’s comments on sanctions include references to claims not previously considered. Should the complainant wish to take issue with these claims, he may lodge a new complaint. In addition, in his comments on sanctions, which were sent to the Directorate on 18 and 23 September 2009, the complainant argued that the respondent is still not complying with the rulings, as the offending advertising was still displayed at several pharmacies on, inter alia, 22 September 2009.
The Directorate notes, however, that this comment appears to have been somewhat premature, as the ruling dated 9 September 2009 afforded the respondent two weeks to remove all displays. This means that the deadline for removal only lapsed on 23 September 2009. The Directorate is therefore only tasked with determining whether or not sanctions are appropriate at this stage and which sanction, if any, to impose against the respondent. It must be noted that none of the sanctions which the Directorate is empowered to impose in terms of the Code appear to match the complainant’s request.
The closest match could be a sanction as contemplated in Clause 14.4 of the Procedural Guide, which involves placing an adverse publicity statement, including publishing the names of the defaulting advertiser. The question is therefore whether or not this sanction is appropriate in the current matter. In considering sanctions, the Directorate takes into account several factors, most notably the nature of the contravention, any history the respondent has with the ASA, and possible harm done to consumers or competitors as a result of non-compliance. Aside from this matter, a cursory view of previous rulings indicates that the respondent has only appeared before the ASA on one other matter.
In Hoodia Slender Gel / HA Steinman / 13994 (9 September 2009), the respondent undertook to amend its product name in a manner that the Directorate was satisfied would address the complainant’s concern. This does not appear to indicate a wilful and prolonged or continued disregard for the Code of Advertising Practice. However, as pointed out in the ruling dated 9 September 2009, the respondent should nonetheless have made concerted effort to comply with the initial Directorate ruling dated 2 February 2009.
Given the above, and given that the respondent is relatively inexperienced in ASA matters, the Directorate is satisfied that adverse publicity as prescribed in Clause 14.4 of the Procedural Guide is not appropriate. Having said that, however, it also appears that the respondent is in the process of amending its advertising, and could therefore benefit from obtaining advice in this regard, especially given the nature of the industry in which it operates, which is often the focus of complaints brought to the ASA.
In light of the above, and given that the respondent was found guilty of breaching the previous ruling, the Directorate imposes a sanction in terms of Clause 14.2 of the Procedural Guide on the respondent. In terms of this sanction, the respondent is ordered to submit the proposed amendments, original advertisement and all previous ASA rulings to the ACA Advisory Service for pre-publication advice.
It should be noted that this is a once-off pre-clearance which would serve as a learning experience for the respondent. The respondent will clearly benefit from the guidance. For the respondent’s guidance, the Directorate draws the respondent’s attention to Clause 4.1.3 of Section II of the Code, which relate specifically to claims based on consumer survey data.