Biomix breach ruling

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Posted 24 January 2012

It is essential to check one's facts before laying a complaint with the ASA. In this complaint to the ASA, I stated that Biomix continued to make false and unsubstantiated claims for their products on websites. Oops, the ASA was unable to view the same URL links. Did I view website pages that were in my browser's cache? Did the website remove the pages before the ASA confirmed my complaint? Likely explanation is the former, in which case I apologise to both the ASA (for wasting their time) and to Biomix for claiming that they were still in breach of the ASA ruling. I was also under the impression that I had initially argued that "Slimming Solution" as in Biomix Slimming Solution, was misleading. Another lapse of memory. Therefore a complaint regarding this aspect has now been laid with the ASA.

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

23 Jan 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5920

BACKGROUND
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.

On 4 October 2011, the Directorate dismissed the breach allegation and stated that the respondent took reasonable steps after the issuing of a ruling to comply.

SUBSEQUENT TO THIS RULING
In a letter dated 3 November 2011, the complainant lodged a breach allegation against the respondent’s internet advertising of the Biomix Slimming Solutions and Caps. The complainant submitted, inter alia, that the product continued to market using deceptive, unsubstantiated claims either via the name of the product “Slimming Solution Plus” or the websites http://www.slimmingsolution.co.za/outlets.php), and testimonials contained on http://www.queensgate.co.za/slimmingsolution/testimonials.php

In essence, the complainant submitted, inter alia, that at http://www.slimmingsolution.co.za/outlets.php the respondent continued to make unsubstantiated claims as follows:

“Slimming Solution Plus and Slimming Solution Caps are both all natural multifunctional weight loss supplements, with very similar formulas. Liquid absorbs quicker and better into the blood stream and the capsules being more convenient and diabetic friendly. Both products consisting of our unique 7 in 1 Function formula. Since 2005 we have sold thousands both BiomiX: Slimming Solution Plus and Caps thru retail outlets/pharmacies, and online worldwide to people looking for a real natural product that delivers the desired and advertised effects. We regularly receive very positive feedback from customers writing or phoning us to testify to the excellent results they achieved using BiomiX: Slimming Solution Plus and Caps. Please click here for testimonials.

In our stressful, fast paced world, it is difficult to follow an expensive and time-consuming diet that doesn’t fit with your lifestyle, but with the help of Slimming Solution Plus or Slimming Solution Caps anyone can lose their unwanted weight”.

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 referred back to the ruling dated 4 October 2011 which stated that as a small company, the respondent “took reasonable steps to comply with the ruling”. Other than attaching pictures of a banner and lightbox to the complaint, the complainant does not provide any details of the breach. It is therefore very difficult to respond, other than to reiterate that it is acting in conformance with the ASA ruling.

It clarified that since the original ASA ruling, the website http://www.slimmingsolution.co.za has been removed, and the domain page states, “This website is under construction”. A normal consumer cannot therefore access any of the sub-links to the website. If one were to type the alleged domain name http://slimmingsolution.co.za/outlets.php, the page reads, “Not Found” and “the requested URL /outlets.php was not found on this server”. Therefore, the complainant is certainly not accessing this alleged domain name as a reasonable consumer, and his motives for such challenge are questioned.

Regarding the http://www.queensgate.co.za/slimmingsolution/testimonials.php website, the respondent submitted that it has no alliance with Queensgate. In any event, the respondent argued that if one were to type the alleged domain name http://www.queensgate.co.za/slimmingsolution/testimonials.php, the page reads, “Not Found The requested URL /outlets.php was not found on this server”.

As such, the complaint should be dismissed as factually incorrect.

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

The complainant submitted that product continued to market using deceptive unsubstantiated claims either via the name of the product “Slimming Solution Plus” or the website.

It should be noted, however, that the initial Directorate ruling of 14 June 2011 did not consider the name of the product, merely the product’s ability to facilitate weight loss and the implied presence and efficacy of hoodia as an ingredient.

In light of the above, the Directorate will not consider the name “Slimming Solution Plus” insofar as this breach allegation is concerned.

The essential question before the Directorate is whether or not the respondent’s internet 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. Clause 15 of the Procedural Guide details deadlines for withdrawal in the event of an adverse ruling. In terms of online advertising, advertisers are generally given two weeks to remove offending material.

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 Directorate’s preliminary search of the websites provided by the complainant were unsuccessful, and either resulted in a notice that the website was “… currently under construction”, or an error notice indicating that revealed, on the internet site, that “the item you requested could not be found”.

Similarly, attempts to access the website listed by the complainant as http://www.queensgate.co.za/slimmingsolution/testimonials.php resulted in a notice that “the item you requested could not be found”.

Given the above, and in the absence of any evidence to the contrary, it would appear that the respondent is not making unsubstantiated weight loss claims in defiance of the original ruling.

The breach allegation is therefore dismissed.

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