Posted 20 June 2011
The respective formulations are called “Slimming SOLUTIONS PLUS” (for the liquid formulation), and “Slimming SOLUTION CAPS” (for the capsule formulation). In essence the complaint was that the claims regarding the product’s ability to facilitate weight loss and the implied efficacy of hoodia as an ingredient in the product are misleading and unsubstantiated. In subsequent correspondence, it was argued that Sliming Solution Plus product was tested for the presence of the claimed Hoodia, and none was detected. The ASA investigated.
14 Jun 2011
Dr Steinman lodged a consumer complaint against the respondent’s advertising appearing on its website http://www.slimmingsolution.co.za as well as on its product packaging. The advertising promotes the respondent’s product, which comes in liquid or capsule form, as, inter alia, “all natural multifunctional weight loss supplements”. The respective formulations are called “Slimming SOLUTIONS PLUS” (for the liquid formulation), and “Slimming SOLUTION CAPS” (for the capsule formulation).
The advertising contains a host of claims that speak to its ability to accelerate or facilitate weight loss. There is also some emphasis on the fact that it contains Hoodia.
In essence the complainant is of the opinion that the claims regarding the product’s ability to facilitate weight loss and the implied efficacy of hoodia as an ingredient in the product are misleading and unsubstantiated.
In subsequent correspondence, the complainant also argued that he has had the respondent’s Sliming Solution Plus product tested for the presence of the claimed Hoodoia, and none was detected.
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
The respondent submitted numerous responses in a protracted process of requesting extensions, promising additional and crucial information as well as documentation it believes confirms the efficacy claims. When submitting some of its documentation the respondent argued that it should be kept confidential. However, other than constantly apologising for the delay, and insisting that it would submit a final and comprehensive reply, there has been no motivation for the request of confidentiality. The final and comprehensive reply was also not forthcoming.
On 26 May 2011, the Directorate wrote to the respondent advising as follows:
“With reference to the above matter and previously unanswered letters from ourselves (I refer specifically to our letters dated 31 March 2011 and 21 April 2011), I note that you have not yet motivated why the information you marked as confidential should be treated as such.
Given that there has been an inordinate delay in this file, we are unable to grant any additional extensions. At this time we are preparing to rule on the assumption that none of the material you submitted qualifies as confidential (given that you have not supplied any motivation therefore). You are hereby afforded a final opportunity until close of business on Friday, 27 May 2011, to either motivate your request, or withdraw it. If we do not hear from you by this time we will assume that you waive confidentiality on the relevant information”.
No response was received, and on 6 June 2011, the Directorate advised the respondent that it would proceed to rule on the matter.
On 7 June 2011, the respondent’s representative replied that he had been away from the office for approximately a month and was unsure as to what the current status of the matter is. He concluded as follows:
“Please give me until this afternoon to figure out what is going on and I will definitely revert back with answers and also forward my previous reply to you [sic] requests regarding the motivations and summarizations”.
On 9 June 2011, the respondent again submitted that it would “… very soon (after this), and definitely today still (100% guaranteed) forward the ourstanding requested reply along with my reasons for this unfortunate delay in my response …”. Allegations were also made about alleged actions of the complainant, which the respondent is unpleased with. The promised response was, however, not received.
On 10 June 2011, the respondent again apologised for the delay and confirmed that it would be sending the relevant information within the “next hour or two”. This response was never received.
On 13 June 2011 a similar apology was received, and the respondent again referred to “very important new information” which has allegedly recently come to its attention. The respondent added that it would send its final response by 14:00 on that day. This response was also not received.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
It is noted that the respondent has caused a substantial and largely unjustified delay in this matter. The respondent has, time after time, reneged on its promises to submit its final and comprehensive reply to the complaint. However, the Directorate has not yet received same. In addition, there has been no motivation sent as to why the alleged “confidential” information should be treated as such.
In terms of the Procedural Guide, the respondent was initially afforded the prescribed five day period to reply. While the Directorate is willing to grant extensions in certain conditions (refer Clause 188.8.131.52 of the Procedural Guide), an investigation cannot simply be pended until such time as the respondent gets its house in order.
In the absence of any material, reasonable, or justifiable reason for yet another delay, the Directorate was satisfied that it has afforded the respondent more than enough time to reply. As such, the Directorate proceeded to finalise the ruling in this matter based on the material at hand, as was submitted by the respondent on the odd occasions were such responses were submitted.
The Directorate also again records that in the absence of any motivation as to why it should be treated as such, the respondent’s alleged “confidential” information will not, for the purposes of this ruling, be regarded as confidential.
For the sake of completeness the Directorate also notes that the respondent’s allegation about a presumed link between a potential competitor (Mr Hannes Mulder) and the complainant was not backed up by any evidence thereof. As such, this is no more than mere speculation and has no material effect on the ruling at this time.
Merits of the matter
The complainant is of the opinion that the claims that appear on the respondent’s packaging regarding the product’s ability to facilitate weight loss and the implied efficacy of Hoodia as an ingredient in the product are misleading and unsubstantiated.
Clause 4.1 of Section II states, inter alia, that before advertising is published, advertisers shall hold in their possession documentary evidence as set out in Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation.
The products advertised on the respondent’s website are promoted as an “All Natural Fat Burners”, and contains repeated references to the ability to assist and speed up weight loss. There are also some references to Hoodia and its purported effect as used in these products.
The documentation submitted by the respondent contains various certificates from different laboratories, dealing with whether or not the respondent’s products contain Hoodia as claimed. Some of these laboratories state that the levels of Hoodia were so low that it could not be determined, whereas others appear to suggest otherwise. In no instance, however, has the respondent motivated why the Directorate should accept any of the relevant laboratories as independent and credible experts in the relevant field to which the claims relate. It is also unclear whether or not the one laboratory relied on, MJ Labs, is also the supplier used by the respondent. If this is the case, it would negate any argument of independence, which is problematic insofar as the requirements of Clause 4.1 of Section II of the Code are concerned.
In any event, the Directorate notes that the submitted documentation is not product relevant but ingredient based. It is trite that the ASA cannot accept ingredient-based substantiation as adequate when efficacy claims are made for the product as a whole.
In the absence of any independent and credible verification that the respondent’s claimed weight loss abilities are true for its products as a whole, when consumed at the recommended dose, the Directorate cannot accept the claims.
Based on the above, 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 are unsubstantiated and therefore in contravention of Clause 4.1 of Section II.
In light of the above decision it is not necessary to consider clause 4.2.1 of Section II of the Code at this stage. It is expressly noted, however, that this does not preclude this clause from being considered on appeal.
Given the above:
The respondent’s advertising must be withdrawn;
The process to withdraw the advertising must be actioned with immediate effect on receipt of this ruling;
The withdrawal of the advertising must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
The advertising may not be used again in its current format in future.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
The complaint is upheld.