Celltone – ASA breach ruling – 03/2015

Posted 25 March 2015

A complaint was laid with the ASA that Celltone continues to make unsubstantiated claims for their product. In a surprise, the ASA held that the claims were either not the same, or acceptable.

For example, the ASA states, that the claims below,

“Clearly, these claims are contextualised, and limited in scope, thereby conveying a message substantially different to the original, broad claims ruled against in 2012”.

The “new” claims are:

“Celltone Gel has been clinically proven to:
reduce the appearance of dark spots after 14 days of continued use
reduce the appearance of stretch marks after 8 weeks of continued use
reduce the appearance of wrinkles after 28 days of continued use
 Note: It has been clinically tested on [C]aucasian skin”

What did the study actually show? For dark spots, we argued that “the data clearly shows that there was no statistical significance for the product for Dark Spots on the hands after 14 days nor at day 56 but ONLY at day 28. In other words, the study claims that using Celltone makes no difference after 14 days, that there appears to be improvement at 28 days, but then this effect is lost and there is no difference at 56 days!” 

For stretch marks, in our words, when in fact the product has NO benefit on the “visible appearance of stretch marks” at 14 days, or at 28 days, or at 70 days, but is ONLY at 56 days! How long does the effect last before disappearing at 70 days! Surely this is highly misleading?

See our deconstruction of the study. See also the original ASA ruling (opens in new window)  

CELLTONE / H A STEINMAN / 18897
Ruling of the: ASA Directorate
In the matter between:
DR HARRIS STEINMAN Complainant(s)/Appellant(s)
CELLTONE (PTY) LTD Respondent
17 March 2015

http://www.asasa.org.za/rulings/celltone-hasteinman-18897-breach

BACKGROUND

In Glomail Celltone / H A Steinman / 18897 (25 October 2012) the Directorate ruled that the following claims on the respondent’s website were unsubstantiated and therefore likely to mislead consumers.

“Do you want your skin to feel more regenerated and your wrinkles to appear smoother?

Celltone is an advanced skin care product with Snail Extract Gel.
Celltone assists with the management of various skin afflictions
Helps diminish the appearance of stretch marks, scarring, spots and wrinkles
Properties include Allantoin, Collagen, Elastin and Vitamins that help enrich the softness of the skin
You will feel and enjoy smoother, more regenerated and younger looking skin
Easy to use soft gel with a pleasant fragrance”.
The respondent was instructed to withdraw the advertising in its current format within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.

In rulings dated 7 March 2013 and 11 July 2013 respectively, breach allegations by the complainant were dismissed.

In a subsequent ruling issued on 10 October 2013, the effectively rejected the new substantiation filed by the respondent, and emphasised that “… ruling of 25 October 2012 remains binding, and the respondent is not permitted to make the claims ruled against”. The relevant shortcomings in the evidence were discussed in the ruling.

Finally, in a ruling issued on 17 September 2014, the Directorate held that the respondent was in breach of the original ruling, as it continued making the claim “all products are enriched with Snail Gel extract which can help to reduce the appearance of Stretch marks, Wrinkles and Dark spots”. While the respondent had submitted new evidence at the time of this ruling, the Directorate was procedurally precluded from considering this evidence, as it was not properly filed in accordance with Clause 4.1.7 of Section II of the Code. No sanctions were imposed as a result of this breach finding.

SUBSEQUENT TO THE RULING
On 11 February 2015 the complainant lodged breach complaint against advertising appearing on http://www.celltone.co.za/en/news/if-stretch-marks-are-a-problem-for-you-reduce-the-appearance-of-them. It was submitted that the following claims are made:

“You can reduce the appearance of your stretch marks. How is it possible to reduce the appearance of stretch marks? Celltone Snail Gel contains Snail Gel, Vitamin E and Grape Seed Oil which are known to contain Omega 3 and 6 and acts as a natural antioxidant providing moisture, hydration and fight free radicals. Celltone helps reduce the appearance of stretch marks after 8 weeks of continued use”.

The complainant argued that it appears to be a breach of the ASA ruling as well as Celltone’s own research.

It was further submitted that at http://www.celltone.co.za/products/8-celltone-gel.html, the claims “continue to be made” that:

“Celltone Gel has been clinically proven to:
reduce the appearance of dark spots after 14 days of continued use;
reduce the appearance of stretch marks after 8 weeks of continued use;
reduce the appearance of wrinkles after 28 days of continued use”.
The complainant argued that the respondent continues to ignore ASA rules and rulings, is acting mala fide and that the harshest sanctions are warranted.

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 firstly pointed out that the reference to Celltone Tissue Oil is irrelevant, as this product has not been considered by the ASA to date.

Insofar as the allegation of breach was concerned, it argued that the original ruling (25 October 2012) related to the following claims:
“… regenerative gel …”;
“… assists with the management of various skin afflictions”;
“… Helps diminish the appearance of stretch marks, scarring, spots and wrinkles …”;
The subsequent ruling of 10 October 2013 expanded on the first ruling by clarifying, inter alia, that references to improving the appearance of scars or scarring has not been established, and that references to improving the appearance of wrinkles and dark spots only appear at very specific times, and do not last even with continued use. In addition, the Directorate raised concerns that the advertising at issue did not appear to narrow the scope of the claims to any specific population group despite the fact that only Caucasian skin had been used to test the product.

The respondent emphasised that it acquired the product from the previous owners (who were the recipients of the original rulings), and has since also enlisted the services of not only a cosmetic expert (Mr John Knowlton of Cosmetic Solutions), but also obtained pre-publication advice from the ACA Advisory Services.

Its new / current claims qualify the efficacy in terms of duration of use and the type of skin tested. In keeping with the notion that amended claims constitute new claims (see Biobust / Dr HA Steinman / 3247 (14 September 2010) for additional context), these cannot be held to be a breach.

As such, the breach allegation must fail, and the issue of sanctions is not relevant at this time.

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

The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. It is not currently in a position to determine whether or not the documents from Mr Knowlton or the ACA Advisory Services adequately support the claims as they currently appear.

The essential question before the Directorate is whether or not the respondent’s 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 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

While the Directorate is inclined to agree that the claim “Celltone helps to reduce the appearance of stretch marks after 8 weeks of continued use” appears to still make a rather broad efficacy claim, this claim is not as bellicose as the original claims It no longer includes references to “scarring”, “various skin afflictions” or “smoother, more regenerated and younger looking skin” as was the case before, and is therefore suitably different, and communicated in a different context and manner.

This is even truer for the new claims being made on the website at http://www.celltone.co.za/products/8-celltone-gel.html. These claims read as follows:

“Celltone Gel has been clinically proven to:
reduce the appearance of dark spots after 14 days of continued use
reduce the appearance of stretch marks after 8 weeks of continued use
reduce the appearance of wrinkles after 28 days of continued use
Note: It has been clinically tested on [C]aucasian skin”.

Clearly, these claims are contextualised, and limited in scope, thereby conveying a message substantially different to the original, broad claims ruled against in 2012 (as summarised at the top of this ruling).

The Directorate therefore does not agree that the respondent is in breach of the original ruling, or Clause 15 of the Procedural Guide.

The breach allegation is therefore dismissed, and the request for sanctions will not be considered at this time.

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