Posted 31 August 2012
A consumer lodged a consumer complaint against Topline Innovations’ print advertising that appeared in the Health Intelligence magazine, promoting its Bodytrim system. The advertising shows the picture of a lady in a white two piece swim suit. It is headed “MELT BODY FAT & flabby skin fast”.
In essence, the complainant submitted that he was unable to find any reputable research that proved the claims made for this product. He noted that the advertising only uses Australian testimonials (which in themselves are not regarded as substantiation), and that there may well be no evidence of efficacy for the South African population. The complainant also referred to a ruling made by the ASA in the UK against this system on the basis that the claims made were not substantiated. The ASA concurred.
|Bodytrim / R Jobson / 20440|
Ruling of the : ASA Directorate
In the matter between:
M Roy Jobson Complainant(s)/Appellant(s)
Topline Innovations Mail Order cc Respondent
28 Aug 2012
Prof Jobson lodged a consumer complaint against Topline Innovations’ print advertising that appeared in the Health Intelligence magazine, promoting its Bodytrim system.
The advertising shows the picture of a lady in a white two piece swim suit. It is headed “MELT BODY FAT & flabby skin fast”. The body copy of the advertising is in the form of a question and answers in relation to the product and how it works at, inter alia, ensuring weight loss, treating cellulite and sagging skin, stimulating metabolism and burning fat.
In essence, the complainant submitted that he was unable to find any reputable research that proved the claims made for this product. He noted that the advertising only uses Australian testimonials (which in themselves are not regarded as substantiation), and that there may well be no evidence of efficacy for the South African population.
The complainant also referred to a ruling made by the ASA in the UK against this system on the basis that the claims made were not substantiated.
The complainant specifically identified which claims he took issue with.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant specifically identified the following provisions of the Code as relevant:
• Section I, Clause 4.25 – Definitions (Scientific substantiation)
• Section II, Clause 15 – Guarantees
• Appendix E – Advertising for slimming
The respondent submitted that the advertising in question was submitted in error. Ordinarily, all its advertising is submitted to the ACA for advice prior to flighting. In this instance, certain items were identified as non-compliant with the Code of Advertising Practice and the intention was to submit the advertising that had the ACA recommendations implemented. It respondent regrets having had the incorrect advertising placed, and has made all efforts to ensure that this does not happen again.
When pressed for clarity over whether or not it intends to use some of the other claims not dealt with in the ACA opinion, it advised that it was assessing the future viability of distributing Bodytrim products in South Africa and will not be publishing any new advertising in the near future. Should it wish to publish advertising for Bodytrim, the advertising will be submitted for pre-clearance.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking is accepted without considering the merits of the matter.
The respondent submitted that no advertising would be placed in the new future, however, that the advertising would be submitted for pre clearance should they wish to advertise.
As the respondent’s undertaking addresses the complainant’s concerns, there is no need for the Directorate to consider the merits of the matter at this time.
The undertaking is therefore accepted on condition that the advertising is withdrawn in its current format within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.
More pertinently, the Directorate also draws attention to the provisions of Clause 15.5 of the Procedural Guide, which requires the removal of offending advertising from any media.
The Directorate also specifically notes that the respondent has had a similar “mishap” in its advertising for one of its other products, which also made unsubstantiated efficacy claims (refer Rayma Balance Bracelet / DL Whitehead / 8621 (13 July 2012) for a thorough explanation). In this matter, the respondent also allegedly had an incorrect advertisement placed.
More significant, however, is the fact that in the Rayma Balance Bracelet matter referred to above, the respondent received a suspended sanction, and the Directorate specifically noted:
“To date the respondent has not submitted any acceptable evidence for its claims. It would appear that the sanction previously imposed on the respondent has had little effect on its advertising. This is regrettable, and suggests no immediate intent to comply with the provisions of the Code or the previous rulings.
Ordinarily, a sanction in terms of Clause 14.3 of the Procedural Guide would be appropriate. However, given that the respondent has not had more than one adverse ruling in the past 12 months, the Directorate is precluded from imposing this sanction.
As a result, and given the respondent’s apparent disregard for the provisions of the Code and the implications of previous rulings, the Directorate imposes a sanction on the respondent in terms of Clause 14.5 of the Procedural Guide.
In terms of this sanction, the respondent is ordered to ‘… publish a summarised version of the ruling as proposed by the ASA, in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ASA, and the cost of such publication will be for the respondent. Where the respondent refuses to pay for the costs of the publication of the summarised version of the ASA’s ruling, the ASA may order the withdrawal of all advertising space in respect of the respondent, until such time as these costs have been paid’.
At the discretion of the ASA, this sanction is suspended for a period of 12 months from the date of this ruling Should the respondent again be found to have contravened the provisions of the Code or previous rulings within this period, the above sanction will automatically be evoked, along with any additional sanctions the Directorate deems appropriate”.
In accordance with the provisions of Clause 14 of the Procedural Guide (which deals with sanctions) the Directorate may take a voluntary undertaking to withdraw advertising into account for the purposes of determining which sanction is appropriate.
The practical implication of this is that the Directorate may possibly have to evoke the suspended sanction imposed in the Rayma Balance Bracelet matter. Before deciding this, however, the Directorate believes it would be appropriate to invite comments from the parties to this dispute on the issue.
As such, the complainant is hereby afforded ten days to comment on whether or not the ASA should:
evoke the sanction suspended in the Rayma Balance Bracelet matter;
impose any additional sanction on the respondent.
After this period, the respondent will be afforded the same courtesy before the ASA considers the issue of sanctions.