Posted 31 January 2014
A consumer complaint was laid against a Homemark advert which promoted the Homemark’s “Aragan Secret Nail Treatment”, making claims such as: “Cure your nail fungus” and “Homemark’s tried and tested Aragan Secret Nail Treatment with Moroccan oil is guaranteed to clear discoloured nails, treats ingrown nails and gets rid of nail fungus once and for all …”. The complainant submitted that he has searched available literature on the benefits of Aragan oil, and there is nothing to suggest that it has any effect on fungus, or nails in general.
Homemark was not able to supply any evidence that the product does treat or cure nail fungus. No surprise, it is a Homemark product!
24 Jan 2014
Dr Steinman lodged a consumer complaint against a Homemark mailer sent to him during November 2013. The mailer promotes the respondent’s “Aragan Secret Nail Treatment”, making claims such as:
“Cure your nail fungus” and “Homemark’s tried and tested Aragan Secret Nail Treatment with Moroccan oil is guaranteed to clear discoloured nails, treats ingrown nails and gets rid of nail fungus once and for all …”
The complainant submitted that he has searched available literature on the benefits of Aragan oil, and there is nothing to suggest that it has any effect on fungus, or nails in general. The respondent is a serial offender of the Code of Advertising Practice over many years, and is therefore fully conversant with the Code and its clauses. Sanctions are therefore appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant.
The respondent submitted, inter alia, that it has removed the claim “treats ingrown nails and gets rid of nail fungus once and for all” from its website and email campaigns. This claim was made based on literatures that suggest that Tea Tree oil (a component of this product) has antifungal qualities.
It added that it has had no adverse rulings from the Advertising Standards Authority for a number of years and being termed a “serial offender” by the complainant is inappropriate. It always endeavours to comply in full with the Code.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In terms of the Code and a long-standing principle held in previous rulings, the Directorate has discretion in terms of deciding whether or not an unequivocal undertaking to remove or amend the advertising complained of is an adequate resolution to the matter.
The respondent’s undertaking appears to address the complainants’ immediate concerns and there is therefore no need for the Directorate to consider the merits of the matter at this time.
The undertaking is accepted on condition that the advertising and relevant claim is not used again in future in its current format in future.
Request for Sanctions
The respondent is correct in arguing that it has not received adverse rulings from the ASA in recent years. It would appear from a preliminary search on the electronic archives of the ASA that the last ruling against Homemark was issued in 2012, and related to an incident of non-compliance with an existing ruling.
Having said this, the Directorate cannot ignore the fact that over the years, the respondent has received several adverse rulings because of a tendency to make unsubstantiated claims. This tendency, along with a tendency to voluntarily withdraw advertising complained about, resulted in a pre-clearance sanction being imposed on the respondent in 2009 (refer the ruling of the Advertising Standards Committee in Homemark Pure Magic Spa / HA Steinman / 13961 (19 November 2009) for details.
At the moment, the Directorate does not agree that sanctions are warranted, as the respondent does not appear to have advertised in a manner that contravenes the Code in recent years. The Directorate is therefore willing to give the respondent the benefit. It is hoped, however, that the respondent will continue to abide by the principles of the Code of Advertising Practice.
The Directorate therefore does not believe any sanctions are warranted at this time.