Posted 05 October 2011
"On 18 August 2011 the complainant lodged a breach allegation against the respondent’s banners and promotional material found at a health store at the Cape Town V & A Waterfront, Nu Pharmacy in Claremont Cavendish Centre and Royal Ascot Pharmacy at Paddocks Shopping Centre. It was submitted that to date the respondent has not removed any of its offending banners or promotional items containing claims that are unsubstantiated."
Biomix Slimming Solution / HA Steinman / 16876
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Kalosceuticals cc Respondent
04 Oct 2011
In Biomix Slimming Solution / H A Steinman / 16876 (14 June 2011) the Directorate ruled, inter alia, that the claims appearing on the respondent’s website http://www.slimmingsolution.co.za and packaging regarding the product’s ability to facilitate weight loss and the implied presence and efficacy of hoodia as an ingredient were unsubstantiated and therefore in contravention of Clause 4.1 of Section II.
The respondent was instructed to withdraw the advertisement with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
SUBSEQUENT TO THIS RULING
On 18 August 2011 the complainant lodged a breach allegation against the respondent’s banners and promotional material found at a health store at the Cape Town V & A Waterfront, Nu Pharmacy in Claremont Cavendish Centre and Royal Ascot Pharmacy at Paddocks Shopping Centre.
It was submitted that to date the respondent has not removed any of its offending banners or promotional items containing claims that are unsubstantiated. Two images were attached to the breach complaint. These images were from the Nu Pharmacy in Claremont and the Royal Ascot Pharmacy respectively.
RELEVANT CLAUSES 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.
The respondent submitted, inter alia, that the complainant is not complaining about the advertising material that was originally the subject of his complaint (i.e. the website and packaging), but rather about the fact that the respondent has not removed banners or promotional items from a number of pharmacies.
It further submitted, inter alia, that from its reading of Clause 15.3, sub-clause 6 dealing with “pamphlets, posters and leaflets” appears to be the closest provision to the store banners complained against, and only states, “as determined by the ASA”. This omission of a specific time period seems to suggest that the ASA will take the facts and circumstances of each specific case into account in determining whether there was adherence.
It submitted that the company Transfarm was responsible for the dissemination (and consequently removal) of all its advertising material into pharmacies. However, a while back this company was bought over, and no longer offers such services, which means that the respondent is solely responsible for dissemination, and withdrawal of all advertising material to pharmacies. As a small company, material was not regularly disseminated into the market, and the banners were disseminated into the market over a period of approximately six years.
The respondent added that it had given instructions to all the pharmacies, which to the best of its knowledge had any of the advertising material, but cannot reasonably visit each of these pharmacies to ensure that its request was complied with. The NuPharmacy banner was not commissioned by the respondent, but appears to be a pharmacy specific initiative, as this pharmacy is one of the respondent’s oldest and most loyal customers. A letter from Nu Pharmacy responsible pharmacist confirming that all advertising material erected at the premise is directed by him was also submitted.
It appears that its Biomix Slimming Solution was supplied to approximately 220 pharmacies in the Gauteng area, and a further 160 pharmacies in the Western Cape. The examples of the V&A health shop and the Royal Ascot Pharmacy are certainly not an accurate reflection of the various materials that have been removed, given the respondent’s limited labour resources. A list of pharmacies that no longer carry its adverting material, both in Gauteng and Western Cape was attached to the response.
The respondent confirmed that it is taking all reasonable steps to comply with the ruling, taking into account its limited labour resources and the size of its company. The three outlets identified by complainant will be immediately remedied.
From the above, it is clear that the complainant’s allegation that it had not removed “any of its banners or promotional items from a number of pharmacies” is not correct.
ASA DIRECTORATE RULING
The ASA Directorate considered 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”.
The respondent submitted a summary of all different stockist of its product and the progress made in removing the offending material. From the list supplied by the respondent 221 pharmacies in Gauteng carried its product and /or advertising, and 167 in Western Cape, totalling 388 pharmacies. Of these, 322 have already been cleared insofar as the respondent’s advertising is concerned.
In light of the above and given that the respondent, as a small company, took reasonable steps to comply with the ruling, it is the Directorate’s view that genuine efforts were made to remove the offending banners or promotions.
In light of the above, it is the Directorate’s view that the respondent took reasonable steps after the issuing of a ruling to comply and therefore the respondent is not in breach of the Directorate ruling of 14 June 2011.
The respondent is cautioned that 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.
The breach allegation is dismissed.