Herbex Fat Attack – ASA ruling

Posted 4 April 2018

This ASA ruling shows up exactly the mindset of Herbex, and owner Eddie Bisset.

Herbex Fat Attack advertises that this product can break down fat, and aid weight-loss.

In 2013 a complaint was laid with the ASA against the false claims being made for this product. In April 2013 the ASA ruled against the product’s claims and name. We have thoroughly deconstructed why the claims have to be false.

Herbex appealed the ruling, which was dismissed by the ASA Final Appeal Committee (FAC) in October 2014. The FAC was chaired by ex-Constitutional Court Judge, Kate O’Regan. The panel of 5 concluded, among other, that the evidence supplied by Herbex’s 4 ‘experts’ to support their belief that the product’s claims were valid, in fact did not.

Prior to the FAC hearing and ruling, Herbex argued that not being allowed to advertise this product, would by their estimate result in a loss of sales and due to retail credits to be approximately R8 473 308 over a 3 month period.

As a result of the FAC ruling, Eddie Bisset of Herbex decided to take the ASA to the High Court arguing that the ASA has no jurisdiction over Herbex advertising, that is, any claims that Herbex wanted to make. In essence, to paraphrase: “I do not need evidence to prove that my product results in weight loss – and you have no right to stop my advertising, even if the claims are shown to be false”.

Herbex won the High Court action but mostly lost an ASA appeal to the Supreme Court of Appeal. Essentially non-ASA members, like Herbex, can refuse to take part or submit to ASA jurisdiction, but in fact, the ASA can still stop advertisements from being accepted by ASA members, which include the media and television. In a disingenuous media statement, Herbex claimed that they had won. 

In essence it appears that Eddie Bisset believes that Herbex can make any unsubstantiated/unproven claim for this product for they have continued advertising this product despite the FAC ruling which supported the complainant’s argument that there is no evidence to support the claims being made.

Recently, following an advert for Herbex Fat Attack on Carte Blanche, a complaint was laid with the ASA. The ruling follows.

In the ruling, it is clear that Herbex is telling the ASA to piss_off. Surely if one has proof a product works, one would want to show that it does? If one refuses to participate in the ASA process, it is almost certain that a ruling will go against you for how else can the ASA determine whether the claims are true?

Contrast Herbex’s stance with that of Woolworths’ response to an ASA complaint around the same time:
“The Respondent submitted that notwithstanding that it is not a member of the ASA, it has responded to the complaint and wish to assure the ASA of its continued commitment towards upholding the ASA Code. It has voluntarily agreed to resolve the matter with the Complainant through the ASA in the spirit of responsible advertising”. Ouch!!

HERBEX / FAT ATTACK TESTIMONIAL / DR HARRIS STEINMAN / 2018 – 7273F

http://www.asasa.org.za/rulings/herbexfatattacktestimonial-drharrissteinman-2018-7273f

Ruling of the: ASA Directorate

In the matter between:

MR HARRIS STEINMAN Complainant(s)/Appellant(s)

HERBEX A DIVISION OF NEWGROUP (PTY) LTD Respondent

29 March 2018

Dr Steinman lodged a consumer complaint against the Respondent’s television commercial promoting its Fat Attack product.

The commercial features a woman stating:

“Hi. I am Lindsay. I have lost 43 kilograms with Herbex slimmers since 2006. I have kept the weight off for 10 years. Herbex has completely changed my life. I am more confident and feel like I can do anything.” (At this point a split screen is shown where a “before” and “after” images appear). “I am finally living the life I have always wanted to. Do you know what that does to your confidence, your health and your energy levels? My health dramatically improved in the last 10 years. So, if you want to lose weight and keep it off, get Herbex. Start today”.

The following wording appears on screen: “Get slim. Start Today. South Africa’s No.1 slimmers’ Brand. To achieve and maintain your goal weight, you must adjust your life style. A kilojoule controlled diet and healthy exercise programmes are essential”.

COMPLAINT

The Complainant submitted that the there is no objective evidence that the advertised product has any significant effect on weight-loss, and even if the such evidence existed, that the testimonial is not representative for the majority of users of the advertised product.

The Complainant referred the Directorate to foreign legislation or decisions in demonstrating the standards required to deal with testimonials in advertising. He submitted further that a truthful testimonial must point out that the product has only been shown to be effective in a certain percentage of users; that significant weight-loss is unlikely; and that the product MUST be used in conjunction with calorie-restricted diet and exercise, or else it is most likely to have no effect at all. He argued that there are a number of factors that are crucial in assessing the truthfulness of testimonials associated with weight-loss products and those include:

• Does the testimonial infer or state that all users will benefit from the product? What percentage of consumers using the product will experience clinically significant weight-loss? Objectively, the evidence shows that perhaps only 10% or 20% will benefit. A truthful advertisement should state that this product has been shown to work in approximately 15% of users’, for example.
• Was it essential for the product to be used in conjunction with exercise or a calorie-restricted (or other) diet for any weight loss to occur?
• If studies are contradictory, no claims can be made; or the fact that there are contradictory studies must be pointed out specifically.
• As major weight-loss effects have rarely been demonstrated in studies – and, in particular, for any significant number of study participants – no weight-loss products is able to claim ANY significant weight loss.
• No product has been shown to have any impact on long term weight-control, and in calorie-controlled diets, the majority of users not being able to sustain these diets.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint, the Directorate considered Clause 10 (Testimonials) of Section II of the Code to be relevant.

RESPONSE

The Respondent submitted that it is not a member of the ASA, will not submit to ASA’s jurisdiction and will not respond to the merits in the complaint. It referred the Directorate to item paragraph 1.1 of the ASA vs Herbex SCA’s decision as follows: “the Advertising Standards Authority of South Africa (ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it.”

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation submitted by the respective parties.

Jurisdiction

The Respondent submitted that it is not a member of the ASA and will not submit to the ASA’s jurisdiction.

In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16) [2017] ZASCA 132 the Supreme Court of Appeal found, inter alia, that:

1.1          the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;

1.2          the ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.

The ASA will therefore proceed to consider this matter for the guidance of its members.

Merits

Clause 10 of Section II provides, inter alia, as follows:

10.3 Efficacy claims

Testimonials should not contain any claims to efficacy which cannot justifiably be attributed to the use of the product, and any specific or measurable results claimed should be fairly presented. Where “before” and “after” claims are made, they should be capable of substantiation, expressed and illustrated in such a way as to permit a fair comparison to be made.

The Complainant has argued that this approach is inadequate for slimming products and referred the Directorate to international rules on the same issue. The Directorate notes that it is mandated to apply its Code as it stands, and not international rules – although they may be of guidance in matters of interpretation and approach. The Directorate also notes that it is not for the Complainant to set up the standard which the Directorate must apply, but for the Complainant to indicate why the material does not comply with the Code.

The Directorate will therefore only consider the complaint in terms of Clause 10 of Section II.

The Respondent chose not to respond to the merits as it is not member of the ASA and does not submit to its jurisdiction.

Based on the above, the Directorate is presented with Complainant’s submissions on merits with no submission from the Respondent refuting Complainant’s averments. The Directorate is therefore left with no choice but to find that the efficacy claims in the commercial are unsubstantiated as required by the Code.

The commercial is therefore in contravention of the provisions of Clause 10 of Section of the Code.

Members of the Advertising Standards Authority are instructed not to accept this material for publication.

The complaint is upheld.