Posted 05 May 2015
This is an old ruling from February 2014 in which the complainant argued that Homemark claimed for this product, “H]as a laxative effect which helps the digestive system to eliminate toxins from the body through urea and sweating” is possible.” The ASA ruled that “[A]t present, the breach allegation must fail, because the respondent does not appear to be making the claims originally ruled against.”
RULING OF THE ASA DIRECTORATE
In the matter between:
MR PAUL JASPER – Complainant
HOMEMARK (PTY) LTD – Respondent
27 February 2014
Homemark Detox Tea / P Jasper / 17851
In Homemark Detox Tea / P Jasper / 17851 (15 November 2011) the Directorate considered the following claims:
- “STIMULATE Digestive System”;
- “FIGHT Free Radicals”;
- “ENHANCE Immune System”;
- “BOOST Energy Levels”.
- The voice-over also exclaimed “… Plus, lose weight, improve your complexion, all with the amazing Detox Tea …”
The Directorate ruled, inter alia, that the claims were unsubstantiated within the meaning of Clause 4.1 of Section II of the Code, and had to be removed.
SUBSEQUENT TO THE RULING
On 3 February 2014, a new complainant (Dr HA Steinman) lodged a breach complaint against the respondent’s television commercial and website advertising for Detox Tea. He submitted that the product was making claims that it can detox the body and that the website claims that it “Has a laxative effect which helps the digestive system to eliminate toxins from the body through urea and sweating.” He argued, inter alia, that there is no proof that this product can detox the body and the claim that it “[H]as a laxative effect which helps the digestive system to eliminate toxins from the body through urea and sweating” is possible.
It was added that a laxative is a product that “tends to stimulate or facilitate evacuation of the bowels” and has nothing to do with eliminating toxins through urea and sweating.
The name of the product infers that the product can detox the body. However, there is no evidence that this mix of ingredients can in fact do so.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted that the television commercial does not deviate from the previous ruling and there is no mention of any of the claims ruled against. He added that there is no claim that the product helps to “… eliminate toxins from the body through urea and sweating”.
The respondent further argued that the name of the product was never up for consideration and the previous ASA ruling made no finding against the product’s name.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The question before the Directorate is whether or not the respondent’s advertising is in breach of the previous ruling. For this to be the case, the respondent would have to be making the same, or substantially similar claims to those originally considered.
Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.
The original ruling concluded that “The claims ‘STIMULATE Digestive System’; ‘FIGHT Free Radicals’; ‘ENHANCE Immune System’; ‘BOOST Energy Levels’ and ‘… Plus, lose weight, improve your complexion …’ must be withdrawn.
The new commercial states “Help get your body back into peak condition, with the amazing Detox Tea. Eight all natural cleansing herbs have been fused into a delicious tasting tea that will detox, and help relieve constipation from the very first cup. Feel full of life again. Call 430 6000 …”
Considering that none of the original claims appear in the television commercial or on ex facie on the respondent’s website, the Directorate has no basis to find the respondent in breach of the original ruling. It should be pointed out, however, that the claim “Has a laxative effect which helps the digestive system to eliminate toxins from the body through urea and sweating” appears prominently on the respondent’s website despite the respondent’s own expert recommending its withdrawal.
While the current claims may well be subject to substantiation as contemplated in the Code, this can only be tested if a new complaint against the current claims is lodged. At present, the breach allegation must fail, because the respondent does not appear to be making the claims originally ruled against.
The respondent can therefore not be said to have breached the provisions of Clause 15.3 of the Procedural Guide.
The breach allegation is dismissed, and there is no need to consider the issue of sanctions at this time.