02 October 2014
On 5 August 2014 a breach complaint was lodged against advertising appearing on www.celltone.co.za/content/4-about-us. The website contains the claims “all products are enriched with Snail Gel extract which can help to reduce the appearance of Stretch marks, Wrinkles and Dark spots”. The complainant argued that the respondent continues using these claims in spite of the ASA ruling as well as its own research previously found wanting.
Celltone / H A Steinman / 18897
Ruling of the: Advertising Industry Tribunal
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Celltone (PTY) LTD Respondent
17 September 2014
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.
On 7 March 2013 the Directorate dismissed the breach allegation against the respondent’s website advertising on the basis that the respondent took immediate steps to comply with the ruling. On 11 July 2013 the breach complaint was also dismissed.
Finally, on 10 October 2013, the Directorate ruled that it was not satisfied that the respondent’s new substantiation adequately verified the claims at issue. It was therefore ruled that the “… ruling of 25 October 2012 remains binding, and the respondent is not permitted to make the claims ruled against”.
Subsequent to the ruling
On 5 August 2014 the complainant lodged breach complaint against advertising appearing on www.celltone.co.za/content/4-about-us. The website contains the claims “all products are enriched with Snail Gel extract which can help to reduce the appearance of Stretch marks, Wrinkles and Dark spots”. The complainant argued that the respondent continues using these claims in spite of the ASA ruling as well as its own research previously found wanting.
Relevant Clauses 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.
The respondent explained that it recently acquired the product, and the advertiser is no longer Africom International (Pty) Ltd t/a Glomail who were the respondent at the time of the previous rulings.
Prior to purchasing Celltone from Glomail, due diligence was conducted to ascertain, inter alia, which claims could be made in support of Celltone, in light of the adverse ruling ASA rulings. During this process, it insisted on a new evaluation report from Mr John Knowlton of Cosmetic Solutions, in which he advised on new, permissible claims, which are materially different to the claims ruled on by the ASA. Such claims were also approved by the ACA Advisory Service.
All pages reflect the new claims, except for the “About us” page on which the inadvertent error crept in. Upon receipt of the complaint, the website was temporarily taken offline in order to correct the “About us” page as it was never its intent to use claims previously ruled against by the ASA.
ASA Directorate Ruling
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The first point that has to be made is that the current respondent is not ex facie the same as the original respondent. Celltone (Pty) Ltd (the current respondent) confirmed that it acquired the product from Africom International (Pty) Ltd (the original respondent).
As the new owner, the respondent confirmed that due diligence was conducted to ensure compliance with ASA rulings. It is therefore clear that the respondent is assuming full responsibility for compliance with the ASA Code and any relevant rulings. In light of this, the Directorate is satisfied that the current respondent, as the “new” owner of the product previously ruled against, still has to address the breach allegation.
In addition to this, the Directorate notes that it is currently precluded from considering the “new” evidence relied on by the respondent, as the dispute before it is merely one relating to compliance. The submissions from Mr Knowlton, and the ACA Advisory Service are therefore not relevant to the current issue, neither is the respondent’s request for confidentiality on these documents.
Should the respondent wish for the Directorate to formally consider these submissions, such a request should be made in accordance with the procedures set out in Clause 4.1.7 of Section II of the Code.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies.
Clause 15.5 of the Procedural Guide states that “Offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium.
When considering the wording, and more particularly the “About us” page, the underlying take-out is materially similar in context and content to the claims ruled against.
Given the above, the Directorate is satisfied that the respondent’s failure to remove the relevant claims constitute a breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.
However, in light of the fact that the current respondent has not had any previous run-ins with the ASA, and in light of the fact that it has confirmed its willingness to comply, the Directorate does not believe that additional sanctions are necessary at this time.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide. This ruling may also be taken into consideration at such a time.
The breach allegation is therefore upheld but no sanctions will be imposed at this time.