“During March 2010, the complainant lodged a breach allegation regarding the respondent’s website, www.planethoodia.co.za and a print advertisement that appeared in the Sunday Times magazine of 7 March 2010. It submitted that the respondent continues to make unsubstantiated weight-loss claims and it still uses the name “Slender” for its products. The advertisement appearing in the Sunday Times promoted the respondent’s “Slender MAX” product.”
|SLENDER GEL / DR H STEINMAN / 14795|
|Ruling of the : ASA Directorate|
|In the matter between:|
|DR HARRIS STEINMAN||Complainant(s)/Appellant(s)|
|PLANET HOODIA CC||Respondent|
12 May 2010
During March 2010, the complainant lodged a breach allegation regarding the respondent’s website, www.planethoodia.co.za and a print advertisement that appeared in the Sunday Times magazine of 7 March 2010. It submitted that the respondent continues to make unsubstantiated weight-loss claims and it still uses the name “Slender” for its products. The advertisement appearing in the Sunday Times promoted the respondent’s “Slender MAX” product.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
Given the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.
The respondent submitted that the ruling of 18 February 2010 (Slender Gel / H A Steinman / 14795) was received and acknowledged on 22 February 2010. On receipt of the ruling it immediately sought legal advice both on the ruling and to ensure that any further steps it took would not be in breach of any ASA regulations. This same legal advice was received on 2 March 2010.
It added that according to the ASA procedural guidelines it has ten days in which to lodge an appeal against said ruling. Notwithstanding the above, the last advertisement in the Sunday Times was on 7 March 2010 and this advertisement was pre-booked before the 18 February ruling was received. The respondent was therefore not able to withdraw it.
The respondent submitted that the claims will be removed from its packaging, advertising (including a point of sale) and website. The website is under construction and would be completely amended on 19 March 2010. The respondent submitted that the following claims would be removed from all marketing material:
- “World’s #1 selling Hoodia Gel”
- “Suppresses Appetite”
- “Reduces Craving”
- “Improves appearance of Cellulite”
- “Enhances skin Tone”
- “Increases energy levels”
- “Caution use of this product can lead to massive weight-loss”
It submitted that the Brand name Slender Max will no longer be used in conjunction with its Hoodia Gel, Hoodia Caps and Hoodia Tincture and confirmed that it will no longer make weight loss claims for the above products.
It is currently putting plans in place to ensure that all packaging is amended with the timelines according to the ASA guide lines. The respondent reiterated its desire to work within the guidelines and welcomed recommendations from the ASA.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The Directorate notes the respondent’s submission that it is entitled to appeal a Directorate ruling within ten days. This is, however, irrelevant for the purposes of this investigation, as any ASA ruling has to be complied with until it is overturned on appeal.
The Directorate is tasked with determining whether or not the respondent is in breach of the previous ASA Directorate ruling. The complainant’s contention was that the respondent is still making or inferring weight loss qualities to its products, and is still using the name “Slender” despite this being ruled against.
It is noted that the respondent initially did not receive the information as to when the complainant noticed the advertisement. However, when this error was picked up, the Directorate forwarded the relevant correspondence to the respondent for consideration and comment.
The respondent alleged that the material deadlines for submitting advertising to the Sunday Times is several weeks. The advertisement that appeared on 7 March 2010 was pre-booked was the last flighting of its old advertisements.
In terms of Clause 8.9 of the Procedural Guide, any party who wishes to appeal a Directorate ruling must do so within ten days “… of the date on which such party is informed of the ruling…”. From this it is clear that the requirements of any ruling are in force the minute that the Directorate issues the ruling, and not when the respondent acknowledges receipt thereof.
The Directorate’s records indicated that the ruling was sent on 18 February 2010 to the parties. The Directorate will therefore use this date as the point of reference in determining whether or not a breach occurred.
According to the complainant, the advertisement appeared on 7 March 2010, which is only two weeks and three days after the ruling was issued. From information obtained from the Sunday Times, it appears that advertising has to be pre-booked three weeks before the publication month. Three weeks prior to 7 March 2010 would be 14 March 2010.
Therefore, it appears that the advertisement in the Sunday Times magazine was pre-booked before the ruling was issued, and as such it is understandable that the respondent could not prevent the offending advertisement from being published.
Accordingly, the respondent is not in breach of the Directorate previous ruling relating to the print advertisement appearing on Sunday Times magazine. This aspect of the breach allegation is therefore dismissed.
On 7 and 11 March 2010, the complainant submitted that the website has not changed as the claims are still being made or inferred. The respondent submitted that offending claims will be removed from the website and the brand name Slender Max will no longer be used in conjunction with the Hoodia Gel, Hoodia Caps and Hoodia Tincture. It committed itself to changing the website by 19 March 2010.
The respondent was afforded an opportunity to elaborate on why it would take a month to change the website. However, no explanation was given. Therefore, the Directorate had no other option but to rule on the information before it.
The Directorate visited the respondent’s website on 18 March 2010 and noticed that images of packaging for some of the respondent’s products still contained references to the word “Slender” in contravention to the ruling dated 18 February 2010. Subsequent to that, however, no such references appear.
In the absence of additional clarity from the respondent, the Directorate has no option but to find that the respondent was in breach of the 18 February 2010 ruling as the offending claims still appeared a month after the ruling with no reasonable explanation for the delay in removing them.
Accordingly, the respondent’s use of the name “Slender” up to 18 March 2010 is in contravention of the Directorate ruling of 18 February 2010 and therefore in breach of Clause 15 of the Procedural Guide.
While the Directorate is at liberty to consider imposing a sanction on the respondent for this breach, it is noted that the respondent has had to amend its entire brand and all advertising spanning across various media. This has been done and the Directorate does not see a need to impose sanctions on the respondent at this time.