Posted 15 June 2015
Homemark continues to make false claims for their product, Aragan Oil, claiming that it cured nail fungus, among other false claims in breach of a previous ASA ruling. In a complaint to the ASA, it was argued that Homemark has for more than 10 years scammed consumers, and that Homemark should be severely ‘punished’ – similar to a thief who has stolen before, and cannot now claim to not knowing what they are doing is wrong.
Although the ASA agreed that Homemark continued to make false claims in spite of a previous ASA ruling, that severe sanctions were not required.
RULING OF THE ASA DIRECTORATE
In the matter between:
DR HARRIS A STEINMAN – COMPLAINANT
HOMEMARK (PTY) LTD – RESPONDENT
2 June 2015
HOMEMARK ARAGAN OIL / H A STEINMAN / 22871
In Homemark Araqan Oil / HA Steinman / 22871 (24 January 2014¶, the respondent undertook to withdraw its claims that imply that this product was able to treat ingrown nails and eliminate or treat nail fungus.
In a subsequent ruling, issued on 7 April 2014, the respondent was found to have breached this undertaking because similar claims were still being used on its website. At the time, no sanctions were imposed.
Again, in a ruling dated 9 April 2015, the respondent was found to have breached the original ruling, because a video embedded on its website, as well as a television commercial flighted on MNET, made similar claims. The parties were afforded ten working days each to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted that the respondent cannot argue ignorance of Clause 4.1 of Section II of the ASA’s Code, which states “Before advertising is published, advertisers
shall hold in their possession documentary evidence as set out in Clause 4. 1, to support all claims, whether direct or implied, that are capable of objective substantiation.”
The respondent’s business model is to launch a product despite these provisions, with the anticipation of making a great deal of money before a consumer may (or may not) lay a complaint with the ASA. This should be regarded as an aggravating factor and offset the respondent’s argument of mitigating factors.
The complainant submitted that the harshest sanctions possible should be imposed on the respondent for its ongoing, deliberate and decade long abuse of the ASA Code. One cannot argue that the clock should be reset every year when the personality of this company remains unchanged.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the above, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
The respondent submitted that there is no “blatant disregard” of the ASA Code as alleged. It added that the online video was loaded by mistake and only in December 2014. Similarly, the television commercial was flighted infrequently in recent months in anticipation of a clinical trial supporting the claims.
The error and oversight was immediately rectified, and it has not since advertised the product again. It submitted that, under these circumstances, sanctions are not appropriate.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In considering sanctions, the Directorate takes into account several factors; most notably the nature of the contravention, any history the respondent has with the ASA, as well as possible harm done to consumers or competitors as a result of non-compliance.
Before dealing with the respondent’s history, however, it should be noted that the respondent appears to have adopted a somewhat lackadaisical attitude insofar as this particular product is concerned.
Initially (ruling of 24 January 2014) it undertook to remove the efficacy claims. When it persisted in making similar claims on its website (ruling dated 7 April 2014) it claimed that it was unaware that personal testimonies making virtually identical claims would be problematic. While no sanctions were imposed on the respondent (ruling dated 4 June 2014), this was done on condition that “… no unproven efficacy claims are made as per the previous rulings”.
The respondent now claims to have no intentions of advertising until the necessary substantiation has been submitted. It also alleged that it had received a “clinical trial” in support of its claims, which is part of the reason why advertising was flighted despite the previous rulings.
Objectively speaking, this seems like a feeble excuse for non-existent or ineffective attempts to comply. The respondent was aware that it had not submitted any evidence of the claims to the ASA, and was aware that it had undertaking to remove all efficacy claims, yet it has been found to still be making such claims on at least two occasions since, not only on its website (where it has complete control) but also on national television (which could only occur if it instructed the media owners to broadcast the offending advertising). It is also worth mentioning that, to date, no evidence of any kind has been submitted to the ASA.
At the very least, this constitutes aggravating circumstances that would suggest that sanctions are appropriate.
However, the Directorate is obligated to consider the history of the advertiser, as this was raised as a key consideration by the complainant in his comments on the issue of sanctions.
If one were to extend the scope of the enquiry into the respondent’s conduct as far back as 2010, the following additional rulings warrant consideration:
- Homemark Detox Tea / P Jasper / 17851 (27 February 2014) — in which the breach allegation was dismissed.
- Homemark Pest Maaic / CP Kotze / 10695 (21 Mav 2012) — in which the breach allegation was upheld.
- Homemark Detox Tea / P Jasper / 17851 (15 November 2011) — in which the complaint was upheld.
- Homemark Detox Foot Pads / HA Steinman / 13966 (29 November 2010) — in which the complaint was dismissed.
- Homemark Relax and Tone / HA Steinman / 15256 (26 April 2010) — in which the complaint was dismissed.
It is clear from the above that there is no pattern of non-compliance as suggested by the complainant. Other than the rulings relating to the respondent’s Aragan Oil product, the respondent has not been found to have breached the ASA Code or a pre-existing ruling since 2012.
Weighing up the issues and relevant factors, the Directorate is of the view that a sanction in terms of Clause 14.2 of the Procedural Guide is warranted at this time.
In terms of this sanction, the respondent is ordered to submit the proposed amendment, original advertisement and the relevant ASA rulings to the ACA Advisory Service for pre-publication advice before making efficacy claims for its Aragan Oil product.
This is a once-off sanction, and the respondent should retain proof of its approval from the ACA Advisory Services, in the event of further disputes being lodged with the ASA.
An Ad Alert will also be sent to all ASA members advising them of this sanction, and in particular, the fact that the respondent’s new advertising for this product is subject to pre-approval from the ACA Advisory Services