Posted 12 January 2012
In this ruling, the ASA has bared its teeth. Johan Brittz is the person behind the scam products, Organoslim, Be-trim, and Easythin. Clearly without conscience, he simply changes the name of the product, and/or the formulation, and continues to sell these scam products.
"The complainant firstly objected on the basis that the weight loss claims made are false, and have no scientific basis or proof. In addition, the claim that the product is registered with the MCC is also not true, and somewhat suspicious, seeing that the registration number quoted is the same as that quoted for the respondent’s Be-Trim and Organoslim products. Lastly, the complainant noted that the respondent has received various adverse rulings and/or sanctions for non-compliance with the Code and existing rulings. Clearly the respondent is flagrantly disregarding the rulings and the Code, and severe sanctions are warranted."
Easy Thin / HA Steinman / 18534
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Boundlesstrade 149 (Pty) Ltd t/a Easy Thin Respondent
Dr Steinman lodged a consumer complaint against a print advertisement for the respondent’s Eazy Thin product. The advertisement appeared, inter alia, in the magazine section of Die Rapport newspaper on 28 August 2011.
It is headed “20 Kilo’s – Baie, Baie vinnig!” (which translates to “20 Kilo’s very,very fast!”). It also contains a string of testimonials from people claiming to have lost a lot of weight very fast, using this product. At the bottom, there is an order form, as well as a “Medicine Control Council Registration Number: 017201”.
The advertisement also refers readers to the respondent’s website www.easythin.co.za, which claims, inter alia, that “Easy Thin is a South African product, manufactured by a registered pharmaceutical company. Both company and product is fully registered with the South African Medicines Control Council. Registry Number: 017201”.
The complainant firstly objected on the basis that the weight loss claims made are false, and have no scientific basis or proof.
In addition, the claim that the product is registered with the MCC is also not true, and somewhat suspicious, seeing that the registration number quoted is the same as that quoted for the respondent’s Be-Trim and Organoslim products.
Lastly, the complainant noted that the respondent has received various adverse rulings and/or sanctions for non-compliance with the Code and existing rulings. Clearly the respondent is flagrantly disregarding the rulings and the Code, and severe sanctions are warranted.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint, the Directorate considered the following clauses of the Code as relevant:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
In addition to this, and given the reference to previous rulings and/or sanctions, the Directorate also considered the following provisions of the Code:
• Procedural Guide, Clause 14 – Sanctions
• Procedural Guide, Clause 15 – Enforcement of rulings
All reasonable efforts were made to elicit a response from the advertiser. When the Directorate advised that it would proceed to rule despite the absence of such a response, an email form one “Portia” was received, stating that Ms Sackstein (to whom all ASA correspondence had been sent) was on leave, and would require a few extra days to respond.
Although the Directorate afforded the respondent extra time as requested, no response was received. The Directorate therefore had no option but to rule, based on the information at hand.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II of the Code requires advertisers to hold adequate substantiation for any direct or implied claims that are capable of objective substantiation.
In addition to this, Clause 4.2.1 of Section II stipulates that advertising may not mislead people by, inter alia, omission, ambiguity, exaggeration or otherwise.
There is no dispute that efficacy claims relating to weight loss are capable of objective substantiation. Similarly, the respondent should be able to prove its claimed registration with the MCC. The respondent, however, has not submitted any evidence.
Accordingly, the respondent’s weight loss claims, as well as its reference to a “Medicine Control Council Registration Number” are currently unsubstantiated, and therefore in breach of Clause 4.1 of Section II of the Code.
In addition, and as a result of the above, the respondent’s advertisement is likely to mislead people in a manner that contravenes the provisions of Clause 4.2.1 of Section II of the Code.
This aspect of the complaint is upheld, and the respondent is instructed to:
Withdraw the advertisement and accompanying weight loss claims and references to an MCC registration number that gave rise to this dispute;
Action the withdrawal of the advertisement and relevant claims with immediate effect upon receipt of this ruling;
Ensure that the advertisement and relevant claims are withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and
Not use the advertisement or relevant claims again in the future.
The respondent’s attention is specifically drawn to the provisions of Clause 15.5 of the Procedural Guide, which stipulates that offending advertising (and by implication claims and references) must be withdrawn from any media in which they appear, irrespective of whether or not specific attention was drawn to such media by the complaint. The respondent is therefore required to withdraw all claims and references of the above nature from any media in which they may appear.
This aspect of the complaint is upheld, and given the absence of a response from the advertiser, the Directorate will issue an Ad Alert to its members with regards to this specific advertisement.
Breach / sanctions
A cursory view of the ASA’s electronic archives reveals that the respondent is no stranger to ASA rulings. A few examples are listed below:
Organo Slim / A Blom / 16330 (4 August 2011), in which ruling the Directorate referred back to several previous rulings finding the respondent in breach of the Code and of previous adverse rulings, all pertaining to unsubstantiated weight loss claims. It should also be noted that respondent was sanctioned in this ruling in accordance with Clause 14.3 of the Procedural Guide (requiring pre-clearance of all advertising for a period of six months).
As a result of the above ruling, the Directorate issued an Ad Alert to its members requesting them not to accept any advertising from the respondent for any of its products (including Organoslim and/or BeTrim and/or MicroSlim and/or SlinkySlim and/or EasyThin) unless accompanied by confirmation from the ACA Advisory Services that it may be placed.
Be-Trim / L De Weerdt / 8660 (19 August 2011), in which the Directorate opted to forego additional sanctions on the respondent as a result of the above ruling.
Microslim / HA Steinman / 17632 (12 October 2011), in which the respondent was again ruled against for making unsubstantiated weight loss claims. This ruling also found that the claimed MCC registration for the Microslim product was unsubstantiated.
From the above, it becomes patently obvious that the respondent has little regard for the implications of existing rulings or the provisions of the Code. The respondent has also offered no explanation as to why this advertisement appeared despite the previous rulings.
However, the Directorate has not previously ruled on any advertising relating to this specific product. It would therefore not be correct to find the respondent in breach of a previous ruling when, in fact, no previous ruling exists.
As such, the Directorate cannot, at this stage, rule that the respondent is in contravention of Clause 15 of the Procedural Guide.
This aspect of the complaint is therefore dismissed. It is expressly noted, however, that this does not preclude the Directorate from considering sanctions. Clause 14 of the Procedural Guide states as follows:
“The Directorate, the Advertising Standards Committee, the Advertising Industry Tribunal and the Final Appeal Committee shall be entitled to impose the following sanctions on the respondent in a complaint:”
Given that an adverse ruling was made in relation to the respondent’s unsubstantiated weight loss and MCC registration claims, and given the respondent’s pattern of disregard for ASA rulings, the Directorate is satisfied that sanctions are in order.
It is also noted that the correspondence calling on the respondent to reply to the complaint indicated that the Directorate would consider the provisions of the Code dealing with sanctions. As such, the respondent was afforded due opportunity to consider and comment on this issue, but chose not to.
Given the above discussion, the respondent’s history of non-compliance, and the fact that the respondent has previously been sanctioned in terms of Clause 14.3 of the Procedural Guide (pre-clearance of all advertising) for a six month period, the Directorate believes a more severe sanction is appropriate.
Clause 14.5 of the Procedural Guide empowers the Directorate to:
“order the respondent to publish a summarised version of the
ruling as proposed by the ASA, in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ASA, and the cost of such publication will be for the respondent”.
This clause also states that “Where the respondent refuses to pay for the costs of the publication of the summarised version of the ASA’s ruling, the ASA may order the withdrawal of all advertising space in respect of the respondent, until such time as these costs have been paid”.
The Directorate is satisfied that a sanction in terms of Clause 14.5 of the Procedural Guide is appropriate, and should go some way in informing consumers of the respondent’s conduct and deceptive advertising practices. As such, the Directorate imposes this sanction in the following manner:
The following summarised version of the ruling is to appear as a full page, black and white summary in the Rapport newspaper;
The full page summary is to appear no later than 29 January 2012 (being the last Sunday of January 2012).
The full page summary is to contain in large, clearly legible lettering in “Arial” typeface.
The relevant costs incurred will be for the respondent’s account.
The summary is to read as follows:
“EASY THIN KAN NIE GEWIGSVERLIES BEWYS NIE
Die Gesagsvereniging vir Reklamestandaarde (GRS) het onlangs bevind dat die produk genaamd “Easy Thin” geen bewyse kon lewer vir verskeie aansprake dat dit tot gewigsverlies lei nie, en dat die adverteerder, aangedui in die advertensie as “Easy Thin, 37 Sunset Av., Llandudno. 7806”, geen bewys kon lewer van sogenaamde registrasie by die Medisynebeheerraad van Suid Afrika nie.
Die betrokke advertensie het verskeie getuigskrifte bevat van mense wat na bewering gewig verloor het danksy die produk, sowel as verskei algemene aansprake tot gewigsverlies. Die klaer het ook uitgewys dat die adverteerder al voorheen deur die GRS oor sulke oortredings aangespreek was. Van die ander produkte wat in die beslissing genoem was sluit “Organoslim”, “Be-Trim”, “Slinky Slim” en “Microslim” in.
Alhoewel die adverteerder ‘n geleentheid gegun was om kommentaar te lewer, het dit verkies om dit nie te doen nie.
As gevolg van die GRS se beslissing, was die adverteerder beveel om hierdie opsomming te publiseer en daarvoor te betaal. Die GRS was van mening dat dit sou help om verbruikers in te lig oor die adverteerder se bedrieglike bemarkingspraktyke.
DIE GESAGSVERENIGING VIR REKLAMESTANDAARDE: BESKERM JOU STANDAARDE”.
In English, this translates to:
“EASY THIN UNABLE TO PROVE WEIGHT LOSS
The Advertising Standards Authority (ASA) recently found that the product marketed as “Easy Thin”, was making unsubstantiated weight loss claims, and that the advertiser, identified in the advertisement as “Easy Thin, 37 Sunset Av., Llandudno. 7806”, could submit no proof of its claimed registration with the Medicines Control Council of South Africa.
The advertisement at issue contained a host of testimonials from people who have allegedly lost weight using this product, as well as various general weight loss claims. The complainant also pointed out that the advertiser has previously been ruled against by the ASA for similar contraventions. Some of the other products mentioned in the ruling include “Organoslim”, “Be-Trim”, “Slinky Slim” and “Microslim”.
While the advertiser was afforded an opportunity to comment on the matter, it chose not to.
As a result of this adverse ruling, the advertiser was instructed to publish and pay for this summarised ruling, which the ASA felt would help inform consumers of the advertiser’s deceptive advertising practices.
THE ADVERTISING STANDARDS AUTHORITY: PROTECTING YOUR STANDARDS”.
Should it be brought to the ASA’s attention that the respondent has not published and paid for the relevant summary by the end of January 2012, it will issue an Ad Alert to all its members (including newspapers, magazines, radio, television and the Printing Industries Federation) requesting them not to accept any advertising from the respondent until such time as the sanction is complied with.