Posted 21 August 2012
Was Homemark still selling Slim Coffee in spite of ASA rulings? I say yes, Homemark says no.
|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
17 Aug 2012
In a ruling dated 1 August 2012, the Directorate ruled that the respondent’s internet advertising for its Slim Coffee was in breach of the Directorate’s earlier ruling dated 1 June 2011 (the arbitration ruling). This was because the respondent’s website continued to advertise the product despite the fact that an independent arbitrator had found that there is no evidence to support the respondent’s efficacy claims, resulting in the Directorate instructing the respondent to remove any such claims.
The complainant and the respondent were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted that the respondent has a long history of trying to circumvent ASA rulings, dishonest dealings with the ASA and with the complainant. This was also not the first time that the respondent claimed to have discontinued a product when it was generally available to the public.
The complainant requested the severest sanctions that the ASA feels are appropriate in these circumstances, not only to have the respondent take notice that it needs to conform to ASA regulations, but to send a clear message to other companies that the ASA will not accept other companies adopting similar strategies to avoid compliance with ASA regulations.
RESPONDENT’S COMMENTS ON SANCTIONS,/B>
The respondent noted that the Slim Coffee product has been discontinued a while ago, has been removed completely from its stores and entirely from third-party retail circulation. It has not sourced new stock of the product since last year and it has not advertised the product on television or any other print media for more than a year.
It deals with hundreds of products and very occasionally it encounter problems with its website where, despite removing a product, it re-appeared at a later stage because a different version of the website happened to be loaded at the time.
It had no intention to derive financial benefit from exhibiting this product on its website as it was not available for sale. It ensured the removal of the problematic page the minute the breach came to light.
Under these circumstances, it believes sanctions are clearly not warranted. The ASA should also take into account the longstanding attitude of the complainant, who is more interested in inflicting damage on the respondent’s company and less concerned with protecting the consumers interests.
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, possible harm done to consumers or competitors as a result of non-compliance.
There is no denying that the respondent has been found to have breached the relevant previous rulings and provisions of the Code on more than one occasion in relation to this particular product. However, the Directorate cannot overlook the fact that the respondent was placed in a somewhat difficult position during the course of these events, in that it was initially told to withdraw its advertising, and then told to continue, and then again told to withdraw (reference to this was also made in the breach ruling dated 16 April 2012).
The problem that the Directorate is faced with at this time is that the product is no longer available or advertised, and as such, any sanction relating to, for example, pre-clearance or even adverse publicity relating to the product would serve no purpose, and would likely not be given effect to. However, the Directorate would also prefer to ensure that no future errors occur, and that there can be no allegation that the respondent is again disregarding or circumventing the instructions previously issued.
The only manner in which this can be done, is if the Directorate issues an Ad Alert to its members advising them not to accept any advertising for Slim Coffee product from the respondent under any circumstances. This would have the desired effect of ensuring that no future advertising is published for the product without imposing an “empty” sanction.
As such, and Ad Alert will be issued to all ASA members, advising them that no advertising for Slim Coffee may be accepted under any circumstances.