Posted 05 July 2015
A consumer lodged a breach complaint against the Homemark’s DSTV commercial for Detox Tea, arguing that the respondent was making the same claims as previously ruled against: “Stimulate Digestive System”; “Fight Free Radicals”; “Enhance Immune System”;”Boost Energy Levels”. The ASA concluded that “The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent at this time, save for the immediate removal of the relevant claims from its YouTube commercial, and any other media in which they may appear.”
HOMEMARK DETOX TEA / P JASPER / 17851
Ruling of the: ASA Directorate
In the matter between:
MR PAUL JASPER Complainant(s)/Appellant(s)
HOMEMARK (PTY) LTD Respondent
23 June 2015
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.
On 27 February 2014, a breach complaint was dismissed because the respondent did not appear to be making the claims originally ruled against.
SUBSEQUENT TO THE RULING
On 5 May 2015 another complainant, Dr Harris Steinman, lodged a breach complaint against the respondent’s DSTV commercial for Detox Tea, arguing that the respondent was making the same claims as previously ruled against. The complainant added that the same commercial was available on YouTube at the following URL:
He pointed out that the claims appear at around 9 minutes into the 10 minute advert, and argued that the respondent has been flagrantly ignoring the previous ASA ruling, which would justify sanctions.
The complainant added that the product name is also misleading and should be ruled against.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted that the television commercial has been modified substantially to take into account the ruling. It supplied a copy thereof in order to illustrate the point.
The YouTube was unfortunately left online since the original ruling due to an oversight. The respondent explained that it derives no sales from YouTube commercials, and focuses predominantly on television advertising. This, coupled with a changeover in staff, meant that the commercial was never noticed or removed. The commercial has, however, since been removed.
It extended an invitation to the complainant to inform it of any other possible problems, which it undertook to remedy immediately, without the need for ASA interventions.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At the outset, it should be noted that the product name “Detox Tea” was never considered or ruled on by the ASA. As such, the Directorate is not in a position to rule on this particular issue now as requested by the complainant.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
The television commercial supplied by the respondent is significantly shorter than the YouTube version, and contains none of the claims previously ruled against. This appears to negate the complainant’s argument that the commercial seen on television and the YouTube version are the same.
As such, the Directorate will limit its considerations to the YouTube commercial, which the respondent conceded, was still conveying the offending claims.
Given the respondent’s concession that the YouTube commercial was still available at the time of the breach, it is clear that this commercial was in contravention of the previous ruling, and therefore in contravention of the provisions of Clause 15 of the Procedural Guide.
The respondent attributes the existence of this commercial to an oversight caused by change of staff and insufficient monitoring of YouTube material. It added that it has since removed the commercial, and emphasised the point that it does not focus on or rely on YouTube adverts for business.
While the Directorate is not entirely convinced that this excuses the respondent’s apparent lack of oversight, especially given that the respondent appears to have a dedicated YouTube channel, the Directorate is mindful of the fact that the original ruling was made in 2011, and that this is the first and only instance of breach since then.
Accordingly, the Directorate does not believe sanctions are appropriate at this time.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent at this time, save for the immediate removal of the relevant claims from its YouTube commercial, and any other media in which they may appear.