Posted 10 June 2013
In a ruling dated 28 August 2013, the ASA accepted a voluntary undertaking from Bodytrim to never use the Bodytrim advertising that gave rise to the dispute. As Bodytrim did not pay sufficient attention to the ASA ruling, the complainant and Bodytrim were afforded an opportunity to address the ASA on the issue of sanctions.
The ASA ruled that:
- Bodytrim is instructed to submit all future advertising to the ACA Advisory Services, at its own cost, prior to the publication thereof.
- Given the history of repeatedly making unsubstantiated efficacy claims as detailed above, the ASA Directorate imposes this sanction for a period of 12 months from the date of this ruling.
- An Ad Alert will be issued to all ASA members asking them to refrain from accepting any of the respondent’s advertising unless it is accompanied by express verification from the ACA Advisory Services that it complies with the Code of Advertising Practice.
|Bodytrim / R Jobson / 20440|
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Topline Innovations Mail Order cc Respondent
06 Jun 2013
In a ruling dated 28 August 2013, the Directorate accepted a voluntary undertaking from the respondent to never use the Bodytrim advertising that gave rise to the dispute. However, the Directorate expressed concern over the respondent’s apparent tendency to withdraw advertising subsequent to a complaint, and alleging that the advertising was erroneously placed.
Specific reference was made to the ruling under reference Rayma Balance Bracelet / DL Whitehead / 8621 (13 July 2012), which already expressed concerns over this, and imposed a suspended sanction.
Given this, the parties were afforded an opportunity to address the Directorate on the issue of sanctions.
COMPLAINTS COMMENTS ON SANCTIONS
The complainant effectively requested sanctions in term of Clauses 14.3, 14.4 and 14.5 of the Procedural Guide.
He added that the advertising for Bodytrim had also been ruled against by the Advertising Standards Authority of the United Kingdom and that the respondent should have properly researched the product.
He also submitted that the names of the owners / directors of Topline Innovations Mail Order Service CC be made public in the context of repeatedly contravening the Code of Advertising Practice, and suggested that the publication that carried the advertising (Health Intelligence Magazine) be queried on whether or not they abided by the Code in accepting this advertisement.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the concern over sanctions and the previous ruling, the Directorate considered Clause 14 of the Procedural Guide as relevant.
The respondent noted that the mistake of having submitted the incorrect artwork was noticed before the complaint was lodged, it was withdrawn and no incorrect artwork has been submitted since. It advised that prior to submitting the incorrect artwork, it was sent to the ACA to ensure that it complies with the Code.
The claims are substantiated by the IGEA Group Research who has advertised the product extensively in Australia with no findings against them. Documentation from IGEA was attached to the submission. As such, the respondent has no reason to doubt the claims.
In addition no advertising for either the Rayma bracelet or Bodytrim have been placed since the respective complaints. A request for sanctions is therefore unreasonable.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In considering sanctions, the Directorate takes into account several factors; most notably the nature of the contravention, any history the respondent has with the ASA as well as possible harm done to consumers or competitors as a result of non-compliance.
As far as the nature of the contravention is concerned, it relates to an issue of substantiation (Clause 4.1 of Section II of the Code). This is not something that the respondent is unfamiliar with. In fact, the very first ruling against the respondent was issued on 8 June 2007 in relation to its “Rayma Balance Bracelet”. It held, inter alia, that the efficacy claims made for the bracelet were unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
Since then, it has been found to be in breach of the Rayma ruling on more than one occasion, significantly because it continued making unsubstantiated claims. On 15 September 2009, the respondent was sanctioned in terms of Clause 14.2 of the Procedural Guide to have its proposed amendment for its offending advertisement pre-approved prior to flighting.
An attempt to have its efficacy claims substantiated was unsuccessful, and yet another breach allegation was upheld on the basis of continued use of unsubstantiated efficacy claims. As a result of the latest breach allegation (see Rayma Balance Bracelet / DL Whitehead / 8621 (13 July 2012)) the Directorate imposed a sanction, ruling as follows:
“At the discretion of the ASA, this sanction [publication of a summarised version of the ruling] 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 August 2012, less than 12 months from the above ruling, the current dispute and ruling on the respondent’s Bodytrim product was made, which strictly speaking means that the above sanction should automatically be invoked. The Directorate was, however, mindful of the fact that this was technically speaking a new product, and asked for comments on the issue of sanctions. Unfortunately, due to an administrative error, there was some delay (five months) in forwarding the complainant’s comments to the respondent and asking for a reply.
While the respondent has now submitted documentation from IGEA, it explained that IGEA markets the product in Australia, which negates any argument that they are to be considered an independent credible expert entity as required by Clause 4.1 of Section II. The Directorate therefore had no regard for the IGEA documentation for the purpose of this ruling. It should also be noted that the Code (refer Clause 4.1.7 of Section II) stipulates specific procedures for submitting new substantiation, and the respondent has not complied with these procedures.
The only concern therefore is whether or not the sanction that was suspended should be evoked, or perhaps whether another sanction is more appropriate under the circumstances. The delay in finalising the issue of sanctions would unfairly prejudice the respondent, and the Directorate therefore does not believe the summarised ruling sanction as imposed during July 2012 should be imposed.
Instead, it is noted that the recurring issue appears to be that of substantiation as governed by the provisions of Clause 4.1 of Section II of the Code. A sanction that is educational or instructive would benefit not only the respondent, but presumably the public at large.
Accordingly, in term of Clause 14.3 of the Procedural Guide, the respondent is hereby instructed to submit all future advertising to the ACA Advisory Services, at its own cost, prior to the publication thereof.
Given the history of repeatedly making unsubstantiated efficacy claims as detailed above, the Directorate, at its discretion, imposes this sanction for a period of 12 months from the date of this ruling.
An Ad Alert will be issued to all ASA members asking them to refrain from accepting any of the respondent’s advertising unless it is accompanied by express verification from the ACA Advisory Services that it complies with the Code of Advertising Practice.
Given the above, the Directorate does not believe it is necessary to impose any additional sanction on the respondent at this time. It is hoped that the pre-clearance process will be informative and prevent similar breaches of the Code.