Posted 21 August 2012
In June 2012, the ASA ruled that the Body2Tone’s efficacy claims were unsubstantiated and in breach of Clause 4.1 of Section II of the Code. Body2Tone was instructed to withdraw the claims and the reference to “Dr” with immediate effect within the deadlines stipulated. A consumer complained to the ASA that the Body2Tone’s website remained unchanged in spite of the ASA’s ruling. This appeared to be an obvious flagrant breach of the ASA ruling. The ASA concurred.
| Body2Tone Weight Loss Plan / HA Steinman / 20249|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Natural Body Distribution (Pty) Ltd Respondent
17 Aug 2012
In Body2Tone Weight Loss Plan / H A Steinman / 20249 (4 June 2012) the Directorate held that the respondent’s efficacy claims were unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
The advertisement was published on www.body2tone.com and contained, inter alia, the following claims:
“The Body2tone weight loss pills assist in addressing the bodys metabolism, the bodys ability to breakdown fat, mood and mindset, the thyroid, Insulin, sugar and cravings, the bodys digestive system, water retention, the bodys ability to cope with stress and recovery and liver function, and these eight factors were identified as the most necessary to be addressed in order to achieve lasting and effective weight loss”,
“*Burn Fat * Increase Energy * Improve Metabolism”,
“*Reduce cravings and Control Appetite”,
“*Improve liver function * Detox * Stimulate the Thyroid *”,
“Fight free Radicals with powerful Antioxidants”,
“*Assist Insulin Resistance * Improve Digestion”,
“The Body2tone capsules can help you lose more weight than you would on exercise and lifestyle alone by assisting with the healing process and bringing the body back into balance. This process can take 2-4 weeks depending on person to person – it didn’t take your body’s metabolism and functions to slow down overnight therefore it won’t heal and improve overnight”.
The Directorate also noted that “The respondent has not commented on this, and by implication has not provided any evidence to show that the accolade or title of “Dr” is appropriately attributed to this individual”
The respondent was instructed to withdraw the claims and the reference to “Dr” with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
In addition, the Directorate specifically pointed out that “… Clause 15.3 of the Procedural Guide specifically allows advertisers two weeks to ensure compliance when website advertising is concerned”.
SUBSEQUENT TO THIS RULING
In a letter dated 1 August 2012, Dr Steinman submitted, in essence, that the respondent’s website remained unchanged in spite of the ASA’s ruling. This appeared to be an obvious flagrant breach of the ASA ruling.
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) was considered relevant.
The respondent submitted, inter alia, that changes to the website were made and that it requested its web developers in the USA to clear the cache on the home page. It can take few weeks for a new content on a page to appear if a user who had previously visited the site does not have the settings activated to automatically clear the cache or update. All new visitors will not have this problem.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The question before the Directorate is whether or not the respondent’s advertising is in breach of the previous ruling. For this to be the case, the respondent would have to be making the same, or substantially similar claims to those originally ruled against. In this instance, the allegation pertains to an unchanged section of the website.
The respondent alleged that it did have this section changed, and that the complainant perhaps loaded a cached version rather than the new and current version. It added that it could take a few weeks for new pages to appear and override such cached pages.
The Directorate has three concerns in this regard:
The respondent has not submitted any evidence to show when it started taking steps to amend its website,
The previous ruling specifically spelt out that the respondent has two weeks to ensure that the advertising is removed. This means that the respondent’s website should have been completely updated by 18 June 2012. Even if the alleged cached page was still present for a “few weeks”, it is highly unlikely that it would still be available and accessible at the time of the breach allegation, some eight weeks later.
When the Directorate received the breach allegation, it too attempted to access the respondent’s website to confirm that the advertising at issue was still there. This was done from different computers, and in each instance the page was deliberately refreshed to ensure that no cached page was accessed. As recently as 3 August 2012, the unchanged page was still accessible despite attempts to refresh it.
While the Directorate notes that the respondent’s website has ex facie now been amended (note that no finding is made on whether or not the amendments are adequate at this time), this action is belated.
Accordingly, based on the information at hand, the Directorate finds that the respondent has breached the provisions of Clause 15 of the Procedural Guide by not adhering to the instructions to withdraw timeously.
It is noted, however, that the breach does not appear to be a flagrant and callous disregard of the spirit and letter of the ASA Code in a manner that is likely to bring advertising into disrepute, and that the website material has since been amended, and the respondent does not have a history with the ASA. In fact, other than the current dispute, no other complaints have been received against this company.
Accordingly, the Directorate does not believe sanctions are appropriate at this time.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent.