Posted 07 May 2012
A consumer lodged a consumer complaint against the respondent’s print advertisement appearing in the Mail and Guardian during December 2011. The advertisement, inter alia, promotes the respondent’s “FATBURN” weight loss product as “The 4 in 1 Weight Loss Solution For Best Results!!!” In essence, the complainant submitted that the claims highlighted above are unsubstantiated. He explained that the respondent’s website makes reference to the substance “Opuntia ficus-indica”, but that there is no evidence to suggest that this substance or ingredient (derived from a cactus) has any effect on weight loss.
| Health Matters-Fat Burn / K Charleston / 19318|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Streamline Trading t/a Health Matters Respondent
07 May 2012
Mr Charleston lodged a consumer complaint against the respondent’s print advertisement appearing in the Mail and Guardian during December 2011.
The advertisement, inter alia, promotes the respondent’s “FATBURN” weight loss product as “The 4 in 1 Weight Loss Solution For Best Results!!!” It features a “BEFORE” and “AFTER” photograph of “Linda Groban” as well as what appears to be a brief testimonial from her. In addition, it contains five ticked boxes with the following wording:
• “NO SIDE EFFECTS”
• “ACTIVE FAT BURNER”
• “ACTIVE FAT BLOCKER”
• “APPETITE SUPPRESSANT”
• “METABOLISM ENHANCEMENT”.
Below this the website www.healthmatters247.net and a telephone number “012 715 7247” is provided.
In essence, the complainant submitted that the claims highlighted above are unsubstantiated. He explained that the respondent’s website makes reference to the substance “Opuntia ficus-indica”, but that there is no evidence to suggest that this substance or ingredient (derived from a cactus) has any effect on weight loss.
In addition, the website refers to “Obesity”, which is a term that falls within the parameters of Appendix F. He also pointed out that neither the print advertisement nor the website make any reference to the requirement of a kilojoule-restricted and balanced diet as required by Appendix E of the Code.
Finally, the complainant submitted that the testimonial used in the advertising features a “BEFORE” and “AFTER” photo that is widely available on the internet. As such, he questions the legitimacy of the testimonial.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following sections of the Code as relevant:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 10 – Testimonials
• Appendix E – Advertising for slimming
• Appendix F – References to diseases
The respondent submitted that the advertising was directly copied from information supplied by its overseas supplier. However, as the product was not received well and proved not to be a viable business venture, it has not embarked on any further advertising.
When asked by the Directorate whether this means that it unequivocally undertakes to refrain from using the advertisement and claims objected to, the respondent did not reply.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In light of the fact that the respondent did not confirm that it would refrain from using the advertisement and claims objected to in future, the Directorate had no option but to proceed on the assumption that the respondent would not. As such, the merits of the matter had to be considered. It is also worth noting that the respondent’s website www.healthmatters247.net is very much operational and accepting orders, which appears to contradict the submissions that this business venture was abandoned.
Clause 4.1 of Section II requires verification for any direct or implied claims that are capable of objective verification. It further specifies that this verification should either emanate from, or be evaluated by an independent and credible expert.
The Directorate is satisfied that the claims objected to by the complainant are capable of objective verification in terms of Clause 4.1 of Section II. The respondent, however, did not submit any.
Accordingly, the claims objected to are unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
Clause 10 of Section II deals specifically with the use of testimonials in advertising, and requires, inter alia, testimonials to be genuine, conform to the Code, have adequate substantiation, and that signed and dated copies of testimonials be available for inspection by the ASA.
The respondent has not addressed this and has not supplied any evidence to suggest that the testimonial is legitimate and reflects the actual results achieved by this person.
Accordingly, the references to “Linda Groban” and her purported weight loss as a result of using this product are currently in contravention of Clause 10 of Section II of the Code.
Appendix E deals with advertising for slimming. It requires, inter alia, that any dieting aids (such as this product) may not be advertised unless it is made pertinently clear that they are ONLY effective when used in conjunction with a kilojoule-controlled diet (refer Clause 2.3.1 of Appendix E).
Neither the print advertisement nor the website highlighted by the complainant make any such statements. In fact, the overwhelming impression created is that this product on its own would deliver such results. This is clearly contrary to the requirements of this clause.
Similarly, Clause 2.5.1 of Appendix E requires advertisements for appetite suppressants (which is a function this product claims to have) to explain how they work and insist that advertisers should hold suitable evidence that the product is safe and effective at the level of consumption suggested.
The print advertisement gives no information as to how the product suppresses appetite. While the website does appear to give some explanation, the respondent has not submitted any evidence of safety and efficacy as required by this clause.
As a result, the respondent’s print advertisement and website is in contravention of the provisions of Appendix E of the Code.
Lastly, Appendix F lists a number of diseases to which reference cannot be made unless the product is registered with the Medicines Control Council (the MCC) and the claims approved by the MCC. One such condition listed is “Obesity or overmass”. While the Directorate notes that this term is not used in the print advertisement, it does appear on the website. In some instances, the references only appear when the respondent discusses the dangers associated with obesity. However, other claims state that people with obesity should use this product.
The respondent’s advertising clearly targets people who want to lose weight and creates an impression that the product would deliver such results. In addition, statements such as “People with severe cases of obesity generally use FATBURN™ for about 6-12 months” clearly imply that this product is suitable for the treatment of, or use by obese people. It therefore falls within the parameters of Appendix F.
The respondent has not addressed this aspect of the complainant and has not presented anything to suggest that the product is registered with or approved by the MCC
As such, and based on the information at hand, the advertising appears to be in contravention of the provisions of Appendix F.
In light of the above:
The respondent is instructed to withdraw its advertising and the claims objected to,
The respondent is instructed to action the withdrawal of the advertising and relevant claims with immediate effect upon receipt of this ruling,
The respondent is instructed to ensure that the advertising and claims objected to are withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and
The respondent is instructed to refrain from using the advertising and the claims objected to again in future.
The complaint is upheld, and the respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively requires offending advertising to be removed from any media in which it appears irrespective of whether or not the complainant specifically referred to such media.