Posted 21 April 2014
A consumer laid a complaint against Celltone’s advert stating inter alia, the wording “Celltone has been on the market for over 10 years and has thousands of loyal customers.” The ASA concluded that the complaint at hand cannot currently be properly considered and ruled on. “The Directorate is therefore not in a position to determine whether or not the removal of the claim would be an adequate resolution.”
[note note_color=”#e4eef2″]Glomail Celltone / H Steinman / 2014 – 350F
Ruling of the : ASA Directorate
In the matter between:
Dr H A Steinman Complainant(s)/Appellant(s)
Africom International (Pty) Ltd t/a Glomail Respondent [/note]
26 Mar 2014
Dr Steinman lodged a consumer complaint against a Glomail Internet advertisement promoting Celltone. The advertisement was published at www.glomail.co.za.
The advertisement contains, inter alia, the wording “Celltone has been on the market for over 10 years and has thousands of loyal customers.”
The complainant referred to the claim above, and argued that it is clearly capable of objective substantiation. He adds that, for it to be true, the respondent should have proof that there are thousands of customers who regularly purchase this product (not thousands of people that buy it once only).
He concludes by saying that this claim is not mere puffery, and considering that the respondent’s own evidence negates any argument of efficacy, the claim is “… in breach of the ASA’s regulations, and in particular Clause 4.1”.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant to his complaint.
The respondent submitted, inter alia, that:
The complainant’s complaint does not set out grounds for complaint, and as such the complaint cannot be considered formally within the meaning of the Code.
It is not commercially viable to validate this claim independently, which is why it will remove the claim if the Directorate believes the complaint is properly lodged.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The respondent raised concerns over the validity of the complaint as it is of the opinion that the grounds for the complaint were not set out properly.
The complaint reads as follows:
“For the claim that ‘Celltone has been on the market for over 10 years and has thousands of loyal customers!’ is clearly capable of objective substantiation. In other words, for the underlined claim to be true, Glomail needs to prove that they have thousands of loyal customers that regularly use this product, and not, that the customers are new purchasers [or] purchasers of other Glomail products.
The statement is not mere puffery – it is made to suggest efficacy and why consumers should purchase this product, i.e., ‘thousands of loyal users believe that this product works, and so you should buy it’. And considering that Glomail’s own evidence does not confirm that this product works, it is misleading to the ordinary consumer.
I therefore lay a complaint of a breach of the ASA’s regulations and in particular of Clause 4.1”.
Clause 3 of the Procedural Guide clarifies the requirements that have to be met in order for a complaint to be regarded as “valid”. Clause 3.1.3 in particular, states that “The grounds on which the complaint is based must be clearly stated”.
The complainant has not provided any explanation as to what reasons he may have for believing that the respondent would not be able to substantiate its claim. While he explained what kind of substantiation he would regard as sufficient, he has not suggested, for example, that he has searched and was unable to find any evidence for these claims, or that the evidence available was inadequate for some reason or another.
As such, “The grounds on which the complaint is based …” are not currently “… clearly stated” and it would be improper for the Directorate to expect a respondent to answer to a complaint when the complaint does not provide sufficient motivation to render it more than merely a suggestion or bald allegation (see Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010) for more detailed explanation).
Given the above, the complaint at hand cannot currently be properly considered and ruled on. The Directorate is therefore not in a position to determine whether or not the removal of the claim would be an adequate resolution to the matter in terms of Clause 8.5 of the Procedural Guide.
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