Homemark Slim Coffee ASA breach

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Posted 07 August 2012

This matter involves a protracted dispute between a consumer in relation to the Homemark’s Slim Coffee product. The matter was heard at all levels of the ASA, and ultimately resulted in an arbitration report finding against the  Homemark’s efficacy and weight loss claims. What is more, the  Homemark has been found in breach of the relevant adverse rulings on more than one occasion, but no sanctions were ever imposed. The most recent breach ruling was issued on 16 April 2012, finding the respondent in breach of the previous rulings. The complainant submitted that at http://www.homemark.co.za/product/health–beauty/remedy-slim-coffee the product is still being promoted using “Before” and “After” imagery, under the name “Slim Coffee. The complainant noted that the product is now advertised as Remedy Slim Coffee, but the accompanying image of the packaging is identical to Slim Coffee previously ruled against. This appears to be a flagrant breach of the previous ASA rulings, and warrants the harshest sanctions.

 

Homemark Slim Coffee / HA Steinman / 12988
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Homemark (Pty) Ltd Respondent

01 Aug 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6190

BACKGROUND
This matter involves a protracted dispute between the parties in relation to the respondent’s Slim Coffee product. The matter was heard at all levels of the ASA, and ultimately resulted in an arbitration report finding against the respondent’s efficacy and weight loss claims. What is more, the respondent has been found in breach of the relevant adverse rulings on more than one occasion, but no sanctions were ever imposed. The most recent breach ruling was issued on 16 April 2012, finding the respondent in breach of the previous rulings.

SUBSEQUENT TO THE 16 APRIL 2012 RULING
In a letter dated 27 June 2012, the complainant submitted that at http://www.homemark.co.za/product/health–beauty/remedy-slim-coffee the product is still being promoted using “Before” and “After” imagery, under the name “Slim Coffee.

The complainant noted that the product is now advertised as Remedy Slim Coffee, but the accompanying image of the packaging is identical to Slim Coffee previously ruled against.

This appears to be a flagrant breach of the previous ASA rulings, and warrants the harshest sanctions.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

RESPONSE
The respondent submitted, inter alia, that the product has been discontinued for a few months now. It has been withdrawn in full from its own Homemark shops and the broader retail trade, and the last time it received stock for this product was over 18 months ago.

The appearance on its website is as a result of an omission and not a flagrant disregard. It apologised for the error and submitted that it has happened before that, despite the removal, the old version of the website kept reappearing.

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

The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.

Clause 15.5 of the Procedural Guide stipulates that “Offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium”.

It appears common cause between the parties that the advertising material that forms the subject of the breach complaint appeared on the respondent’s website at the time of the breach allegation in contravention of the previous ruling.

While perhaps true that the respondent “omitted” this aspect when cleaning up its advertising, the fact remains that the product was still promoted on the website in breach of the previous rulings. This is also not the first time that the respondent has been found in breach in relation to this specific product.

Given this, the Directorate is satisfied that the respondent is in breach of the previous rulings insofar as its website advertising is concerned. As such, the advertising at issue appeared in contravention of Clause 15 of the Procedural Guide.

In light of this, the complainant is afforded ten working days to comment on whether or not sanctions are appropriate at this time, and if so, which sanctions in accordance with Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity to address this issue, following which the ASA will consider whether or not sanctions are warranted and if so which sanctions in terms of Clause 14 of the Procedural Guide.

The breach allegation is upheld, and the issue of sanctions will be finalised once the parties have had an opportunity to address the Directorate in that regard.

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