Glomail Celltone breach of ASA?

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Posted 15 July 2013

An advert in a Game flyer, continued to claim that Celltone has a regenerative effect on the skin, a claim previously ruled against by the ASA. A breach complaint was laid against Glomail.

Glomail Celltone / HA Steinman / 18897
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Glomail (Pty) Ltd Respondent

11 Jul 2013

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6626

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:

“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.

SUBSEQUENT TO THE RULING
On 1 July 2013 the complainant lodged another breach complaint against the Game store flyer containing the respondent’s Celltone product. In essence, the complainant submitted that the respondent is making the same or similar unsubstantiated claims. It was added that the claim continues to be made that the product is a regenerative product and this appears to be in breach of the ASA regulations and previous ruling.

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 submitted, inter alia, that it had already set out in detail the significant steps that were taken to comply with the ruling. However, it cannot control every instance of human error or oversights that may occur.

It submitted that it did not print or cause the offending flyer to be printed, nor did it approve the content of the flyer. It further argued that it had no hand in the production or distribution of the flyer and it is difficult to understand on what basis the complainant believe that it could be held responsible.

The respondentfurther submitted that, on 2 April 2013, it came to its attention for the first time that Game was still using old advertisements and it immediately notified Game to rectify this. E-mail correspondence from its Sales Executive to the Game Buyer was attached to the response.
The respondent submitted that the incorrect printing on the flyer was an administrative error by Game, which it obviously cannot control and Game has confirmed that the flyers have all been rectified.

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.

The complainant alleged that the respondent is in breach of the ASA previous ruling by making the same or similar offending claims in a Game store flyer. The respondent argued that it cannot be held responsible for the flyers as it did not print or order the flyers to be printed nor did it approve the content of the flyers.

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.

The respondent submitted an e-mail correspondence dated 2 April 2013 in which its Sales Executive instructed Game Buyer to remove all claims made when advertising in the broadsheet.

In light of the above and on a balance of probabilities, the Directorate is satisfied that the respondent did not ignore the previous ruling, and did not cause the problematic advertisement to be published.

Given this, and in the absence of an indication of mala fide conduct by the respondent, the Directorate does not regard this as an instance of breach.

The breach complaint therefore dismissed.


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