ASA ruling: Slender Max February 2010

Posted 22 February 2010

This ASA ruling is significant. It rules that not only can Hoodia Slender Gel / Slender Max not make any claims (for there is no proof that the product can result in weight loss or appetite suppression), but that the name “Slender Max” is also misleading – “slender” is a claim. Readers will be aware from previous posts, that I argued that there is no proof that Hoodia taken orally will result in weight loss, and that there is even less evidence that it will be absorbed through the skin.

18 Feb 2010

http://www.asasa.org.za/R esultDetail.aspx?Ruling=5044

Dr Steinman lodged a consumer complaint against the Slender Gel packaging and advertising on the respondent’s website www.planethoodia.co.za.

The packaging states, inter alia, “CAUTION, USE OF THIS PRODUCT CAN LEAD TO MASSIVE WEIGHT LOSS.” The following claims appear on the packaging:

“Designed to assist with
Curbing Appetite
Reducing Cravings
Improving Skin Tone”

The complainant also quoted the following from the website www.planethoodia.co.za/gordonii/slender-gel.php:

“Although our own research cannot been regarded as scientific proof, and Advertising Guidelines prevent us from stating it as such, we have found that through assessing the feedback from our customers many of them agreed that Slender Gel has a positive overall effect and will assist with:

SUPRESSING YOUR APPETITE & CRAVINGS
INCREASING ENERGY LEVELS
IMPROVING SKIN TONE
REDUCING APPEARANCE OF CELULITE

COMPLAINT
In essence, the complainant submitted that the advertisements are misleading because there is no proof that the product can result in appetite suppression or weight-loss. Furthermore, the name “Slender…” is misleading as there is no unequivocal proof that the product can result in anyone becoming slender.

In addition, the website and the packaging references hoodia, with the intention of benefiting from the media hype and misleading consumers into believing that the product will work simply because it contains hoodia. However, there is no proof that hoodia results in appetite suppression.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:

Section II, Clause 4.1 – Substantiation
Section II, Clause 4.2.1 – Misleading claims

RESPONSE
The respondent submitted that the brand name makes no claim to actually making people thinner or to losing weight. The word “Slender”, used in its adjectival sense, makes no suggestion off or claim to a “process whereby one becomes less stout or fleshy (attenuate)” but refers to an actual state of being. It also does no apply exclusively to the human body or to human beings. The shorter oxford dictionary gives examples off masts, cables, books, spaces and abilities and arguments being described as slender.

The respondent also submitted that the statement “Caution, use of this product can lead to massive weight loss” is hyperbole. It is a figure of speech that uses exaggerated or extravagant statement to create a strong emotional response. As a figure of speech it is not intended to be taken literally. In support of its argument the respondent gave a few examples of hyperbolic statements used by other people, such as “Red Bull Gives You Wings”.

The respondent further argued that the complainant relies on a previous ASA ruling, Glomail Health Hoodia / HA Steinman / 9299 to argue the use and reference to the name Hoodia. However, the only ruling it could find on this was the Directorate ruling issued on 14 August 2007, where the complaint was dismissed.

Finally, the respondent included an extract from “phytopharm plc” which supports claims that Hoodia extract has significant positive effects in a double blind placebo controlled test. This encounters the complainant’s assertion that “dried and pulverised, processed hoodia” has no efficacy. Additional material on hoodia was also submitted, which refers, inter alia, to tests done by the CSIR and Unilever.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

It is noted that some changes have been made to the respondent’s website since the complaint was received. The respondent, however, did not submit any unequivocal undertakings to make permanent amendments. In addition, the changes appear minor to the extent that the current website still makes similar claims to those previously objected to. There is also nothing to suggest that the respondent’s packaging will change.

As such, the Directorate will rule on the matter based on the material at hand and the advertising as originally objected to.

At the outset, it must be noted that medicinal products cannot be treated as an ordinary general commodity. They have the potential for harmful as well as beneficial effects and can cause serious problems if not used safely. For this reason, there are specific regulations that strictly control the advertising and promotion of medicinal products.

The scope of this ruling is limited to the subject matter of the complaint brought to the ASA, namely whether the claim concerning the efficacy of the respondent’s product can be substantiated. The ASA is not able or authorised to rule on the quality or safety of the product in question, and this ruling must be interpreted and applied accordingly.

The respondent correctly noted that the Glomail Health Hoodia / HA Steinman / 9299 ruling issued on 14 August 2007 dismissed the complaint relating to the inclusion of “hoodia” in advertising. However, what the respondent does not appear to realise is that the complainant appealed this ruling, and on 5 October 2007, the Advertising Standards Committee (the ASC) ruled as follows:

“The ASC considered the advertisement before it as a whole. The overall take-out is that the Glohealth Hoodia with Bioslim Weight-Loss System will result in weight loss. Each part of this system is then listed, and the hypothetical reasonable person would conclude that each part of the system has some efficacy for weight loss. This includes the ‘28 Day Glohealth Hoodia’. The advertisement then clarifies that Hoodia is associated with hunger suppression through the statement ‘. . . it has been used by the San Bushmen who believed it could suppress their hunger during long hunting expeditions.’ The consumer will therefore conclude that the part that Glohealth Hoodia plays in the weight loss programme is that it suppresses hunger”.

The respondent’s advertising clearly attributes its weight loss and hunger suppressing qualities to the fact that it contains hoodia. Its packaging states, “The World’s #1 Selling Hoodia Gel”, and “Hoodia Gordonii” just above the claims “Designed to assist with Curbing Appetite Reducing Cravings Improving Skin Tone” and “CAUTION, USE THIS PRODUCT CAN LEAD TO MASSIVE WEIGHT LOSS”. Similarly, its website states, “Slender Gel … contains pure Hoodia Gordonii and … has been designed to assist with controlling appetite, reducing cravings and enhancing skin tone”.

Given the above, the Directorate agrees that the respondent is attributing weight loss capabilities to its product by virtue of the fact that it contains hoodia.

In addition, the respondent submitted that the use of the word “Slender” in its product name is not limited to humans and does not necessarily mean to lose weight.

The Directorate acknowledges the fact that Slender Gel is the registered name of the respondent’s products. However, if product names are used in a certain manner, or carry an appropriate meaning in relation to the product, it can be understood by consumers to make certain promises or claims. In Bioslim Snack Bar / Dr HA Steinman / 857 (2 June 2005), for example, where a similar issue of a trademark on packaging was considered, the Directorate held that “The word ‘Bioslim’, incorporating as it does the word ‘slim’, as well as the silhouetted figure of a woman that forms the ‘I’ in ‘Bioslim’, has connotations of slimming”.

The same principle applies in this matter. The word “Slender” used on a product that purports to offer benefits of appetite suppression and reduction in cravings can only be interpreted to refer to slender in the sense of “becoming slender”. A hypothetical reasonable person would interpret the advertisement and the name of the product, to fall under slimming products categories and will expect claims made in relation to that product to be achievable. This is even more so given the weight loss and appetite suppressant claims made under the name of this product.

Accordingly, the Directorate agrees that the word “Slender” as used in “Slender Gel” implies that the product will result in a person becoming slender.

The only question that therefore remains is whether or not such an expectation is substantiated in terms of Clause 4.1 of Section II of the Code.

Because the ASA is not a technical expert body, Clause 4.1 of Section II requires it to rely on the opinion received from the “independent, credible expert”. Should the Directorate be satisfied that the relevant person or entity is indeed independent, credible and an expert in the field to which the claims relate, the Directorate will consider whether or not the expert confirms the claims in question as valid for the product.

The advertising objected to states, inter alia, that “Although our own research cannot been [sic] regarded as scientific proof, and Advertising Guidelines prevent us from stating it as such, we have found that through assessing the feedback of our customers many of them agreed that SLENDER GEL has a positive overall effect and will assist with: SUPPRESSING YOUR APPETITE & CRAVINGS, INCREASING ENERGY LEVELS, IMPROVING SKIN TONE, REDUCING APPEARANCE OF CELLULITE”. From this it appears that the respondent is relying on consumer perception data, or survey data.

In addition, in Hoodia Slender Gel / Dr HA Steinman / 12857 (2 February 2009), the respondent confirmed that it intends to communicate that its claims are based on the perceptions of its own customers.

Clause 4.1.3 of Section II specifically deals with claims based on survey data, and expressly requires that such data either emanate from, or be verified by an entity that is approved or recognised by the Southern African Market Research Association (SAMRA).

The respondent submitted no such verification.

In addition, the packaging complained about makes no mention of consumer perceptions. It simply attributes the weight loss and appetite suppressing capabilities to the product. Accordingly, the requirements of Clause 4.1.4 of Section II apply. In terms of these requirements, the respondent should have submitted verification of these claims from an independent and credible expert in the relevant field. It is also an established principle that the Directorate will only accept product-specific substantiation. In other words, the respondent should supply independent verification from an expert in this field to unequivocally state that its product, as a whole, when consumed at the recommended dose, will deliver the claimed effects.

The respondent submitted no such verification.

In light of the above, the claims objected to are currently unsubstantiated, and therefore in breach of Clause 4.1 of Section II. Accordingly, the advertising objected to is also in contravention of Clause 4.2.1 of Section II.

Given the above:

The claims appearing on the website and packaging must be withdrawn;

The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;

The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;

The claims may not be used again in its current format until new substantiation has been submitted, evaluated and a new ruling is made.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

The complaint is upheld.