ASA Simillimum breach ruling

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Posted 03 June 2013

Dr Francesca Swainston is a homeopath. One would expect a doctor to have morals and ethics. Yet in this instance, unproven claims continue to flow for this product in spite of ASA rulings against the claims for the product. Can we call Dr Francesca Swainston a scam artist?

Simillimum / K Charleston / 17529
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Dr Francesca Swainston Clinic t/a Simillimum Respondent

30 May 2013

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6564

BACKGROUND
In Simillimum / K Charleston / 17529 (1July 2011), the Directorate accepted the respondent’s voluntary undertaking not to publish the advertisement complained of and to amend its website. The undertaking was accepted on condition that the advertising was withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.

The advertisement at the time was headed “Get Slim” and stated “Dr FLN Swainston’s remedy for slimmers has been on the market since 1991. It gives faster weight loss results as it repairs the cause of excess fat tissue and strengthens the function of various internal organs.”

It further stated, “It is more focused and concentrated than natural products found in pharmacies and health shops, for maximum effect. It is also different from other slimming products because it repairs the whole hormonal system, including oestrogen levels, and in so doing repairs the reason for many women’s weight problem. It also repairs and strengthens the function of the excretory organs …”. The advertisement also listed a website www.simillimum.co.za along with other contact details.

The respondent’s attention was expressly drawn to the provisions of Clause 4.1 of Section II insofar as substantiation is concerned, as well as the requirements of Appendix E, which deals with products of this nature to a large extent.

On 11 October 2012 the respondent was found to be in breach of the original Directorate ruling as it continued making claims that communicated a similar message to what was originally complained of.

Parties were afforded an opportunity to comment on sanctions. On 11 December 2012 the Directorate imposed a sanction in terms of Clause 14.2 of the Procedural Guide where the respondent was ordered to submit the proposed amendment, original advertisement and the relevant ASA rulings to the ACA Advisory Service for pre-publication advice. It was a once-off pre-publication advice. An Ad Alert was issued to this effect.

SUBSEQUENT TO THE RULING
On 11 May 2013 the complainant lodged another breach complaint against the respondent’s print advertisement that appeared in Essential magazine. The advertisement was headed “Lose Weight for Good”.

The complainant submitted that the respondent continues to make same unsupported claims that were subject of the original complaint. The complainant again highlighted the similarities between the original and the latest advertisement in the following manner:

Original complaint: “Strengthens the functions of the internal organs”.

Latest advertisement: “So, she developed a natural formula to repair, strengthen and support the organs and systems that are usually compromised when a person is overweight”.

Original complaint: “it repairs the whole hormonal system including oestrogen levels”.

Latest advertisement: “Dr Swainston found that a hormonal imbalance is a common factor in most people’s weight gain, especially the sex hormones oestrogen in women”.

Original complaint: “it repairs and strengthens the function of the excretory organs”.

Latest advertisement: “High level of toxicity is another big factor in weight balancing, so the formula includes remedies to repair and strengthen the liver and kidneys to support and speed up detoxification”.

Original complaint: “the result is a permanently slim figure”.

Latest advertisement: “This unique approach to slimming will help you to shed those unwanted kilos-permanently and naturally”.

The complainant further requested the ASA to implement stringent sanctions to prevent further abuse of the Code by the advertiser.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

RESPONSE
The respondent submitted, inter alia, that the since the final decision that a remedy should no longer be advertised and an Ad Alert was sent out, it no longer advertise a remedy. It has, however, advertised Dr Swainston’s book and as far as it understands there is no law against advertising information.

It further submitted that the book does not advertise a product and tells people how to make up their own remedy from various raw materials, which vary according to an individual. There is no product advertised in the book.

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

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”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies.

The essential question before the Directorate is whether or not the respondent’s advertisement is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally complained of.

The complainant argued that the respondent’s current advertisement makes almost exactly the same unsupported claims that were subject of the original complaint. The claims were highlighted by the complaint, and the Directorate agrees that these claims effectively communicate the same message as the original advertisement, which the respondent undertook never to use again.

In the initial ruling, the respondent’s attention was expressly drawn to the provisions of Clause 4.1 of Section II insofar as substantiation is concerned and the respondent has never presented any evidence of efficacy as required by Clause 4.1 of Section II of the Code, and was therefore still bound by the original ruling. There is also no evidence to suggest that the respondent submitted a copy of the advertisement to the ACA Advisory Service for pre-publication advice as it was instructed to do.

The Directorate is accordingly satisfied that the respondent’s current advertisement is in breach of the previous ruling, and therefore a contravention of Clause 15 of the Procedural Guide.

This appears to show a pattern of contravening the provisions of the Code and/or existing rulings.

As such, the complainant is afforded ten working days from the date of this ruling to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide should be imposed, and if so, which sanctions. After this, the respondent will be afforded an equal opportunity after which the Directorate will consider the issue of sanctions in accordance with the provisions of the Code.

The breach allegation is therefore upheld, and the Directorate awaits the parties’ comments on sanctions.

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