Posted 20 May 2014
Dr Maroula Lambis t/a Holistic Healthcare, made claims that “cupping therapy” can “improve[es] circulation by removing toxins, congestion and inflammation … brings nutrient rich blood to the affected area, facilitating the body’s healing process”, for which a consumer laid a complaint with the ASA arguing that there is no evidence that these claims are true. As Dr Lambis could not supply proof that the claims could be proven, the ASA ruled against the claims. Now a consumer complained that the claims continue to be made, this being a breach of the previous ASA ruling. The ASA agreed.
08 May 2014
In Cupping Therapy / K Charleston / 22475 (9 September 2013) the Directorate ruled, inter alia, that the respondent’s advertising, appearing in the Cape Times, was in breach of Clause 4.1 of Section II of the Code, as no evidence was submitted to support the efficacy claims made for the practice of “cupping therapy” as promoted by the respondent.
The respondent was instructed to remove the relevant efficacy claims with immediate effect, and ensure that they were not used again unless adequate substantiation had been submitted and accepted by way of a new Directorate ruling.
SUBSEQUENT TO THE RULING
On 31 March 2014 the complainant lodged a breach complaint against the respondent’s website advertising http://www.holistichealthcare.co.za/services/cupping. The complainant submitted that the claims on the website are the same as those ruled against. While some of the claims now include the word “may”, this is lost in context with the other assertions that remain from the original advertisement.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent initially requested an extension to reply to the breach allegation, explaining that immediate family members have been in a motor vehicle accident, and were still receiving care in ICU. The Directorate granted the extension.
In its formal response, the respondent submitted that it would “review its advertising material in accordance with the ASA ruling of 9 September 2013”. The respondent also requested an extension to 15 May 2014 to make necessary amendments, given the continuing family medical crisis.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
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 means that it is the duty of the recipient of an adverse ruling to ensure that it complies. A key consideration in such matters is what action the respondent took to ensure compliance.
It would appear that the respondent has not amended its website since the original ruling against the newspaper advertisement. In terms of Clause 15.5 of the Procedural Guide, an advertiser is required to withdraw offending advertising from any and all media in which it may appear, irrespective of whether or not a particular media was referred to by the complainant. it should be noted that the original ruling specifically drew the respondent’s attention to this provision.
The submissions at hand suggest that the website was still making the same, or substantially similar claims more than six months later.
It can therefore not be denied that the respondent has not complied with the provisions of Clause 15 of the Procedural Guide, or that it has breached the original ruling.
However, the respondent appears to be dealing with a personal crisis that may likely have impacted on her ability to effect changes to her website. This appears to be the first breach of an existing ruling, which would not suggest that the respondent is a repeat offender. The respondent also does not have a history with the ASA.
Accordingly, the Directorate does not believe sanctions are appropriate at this time.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent at this time, other than the instruction to remove the advertising and relevant claims by no later than 15 May 2014.