Posted 13 December 2024
Homemark submitted new ‘evidence’ (substantiation) to argue that the claims for their product, Pest Magic, was true.
The ARB interrogated the substantiation, and concluded:
Accordingly, the Directorate cannot accept the new substantiation, and the claims previously held to be unsubstantiated remain, at this time, unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
Furthermore:
The Complainant noted that this product is advertised as an “Ultrasonic Pest Repeller”. Ultrasonic devices emit sound. Mr Nusser, however, referred to the product as an “Electromagnetic Pest Control” device. Electromagnetic devices do not emit sound. This contradiction alone implies that the Advertiser is misleading consumers about the nature of the product.
A quick dictionary, or even Google search, would show that “ultrasonic” refers to high sound wave frequencies (too high for humans to hear), whereas “electromagnetic” refers to electronic particles and magnetic charges between them that repel or attract.
Decision of the ADVERTISING REGULATORY BOARD
Advertiser: Homemark (Pty) Ltd
Consumer/Competitor: Consumer
File reference: 3493 – Homemark Ultrasonic Pest Plug
Outcome: New substantiation not accepted
Date: 12 December 2024
The Directorate of the Advertising Regulatory Board has been called upon to consider new substantiation submitted by the Advertiser in this matter.
Background to this dispute
In its ruling 3493 – Homemark Ultrasonic Pest Plug (29 October 2024), the Directorate:
- Accepted the Advertiser’s voluntary undertaking to withdraw any claimed efficacy against flies, moths and ants,
- Accepted the claim that this product is able to “… utilize your home circuit to send out a signal that irritates the nervous system of pests, driving them away without causing harm”, and
- Ruled that the following claims were unsubstantiated:
- Claims to be effective within “2-4 weeks”,
- Any claimed efficacy against mosquitoes,
- Providing coverage of “230 square meters for comprehensive pest control”,
- Being an “Environmentally friendly” or “green”
Description of the advertising
The advertising promotes the Advertiser’s “PEST MAGIC Ultrasonic Pest Repeller”. It explains how this device uses “ultrasonic waves” and drives out various household pests.
Aside from specifically referencing the bugs or pests affected by the device, it also explains how safe the product is and how to achieve the best possible results.
New evidence submitted by the Advertiser
The Advertiser advanced two arguments:
- Mr Nusser, the substantiating expert relied on for the purposes of the previous ruling, noted that “I reviewed the claims and warnings on the packaging of the product and I concur they are accurately and reasonably stated”.
This is significant, as the product packaging (which has remained unchanged since its introduction in 2010) contained the claims “Covers up to 230 square metres”, “Safe to use” and “Environmentally friendly”. The Directorate should therefore have accepted these claims as substantiated the minute it accepted Mr Nusser’s report in the ruling of 29 October 2024. The Advertiser acknowledged, however, that the Directorate did not have a copy of the packaging at the time of the original ruling. An image of the packaging was provided for this purpose.
- Mr Nusser also stated “Electromagnetic Pest Control vibrations from an Electromagnetic Pest Control product such as the Pest Magic communicate with the pests, disturbing their receptors and making them feel they are in a hostile area, where they are not As a result, it drives them out of that area. EPC confuses pests making it difficult or impossible for them to gather food, breed and build their nests, or communicate with each other”.
While Mr Nusser did not pertinently reference the “2-4 weeks” period, this was an unintentional omission. The fact that he agreed that this product was effective implies that the claim to see real progress within “2-4 weeks” is reasonable.
The Advertiser explained that, due to medical reasons, Mr Nusser is no longer in a position to provide substantiating documents or reports.
Response from the Complainant
The Complainant noted that this product is advertised as an “Ultrasonic Pest Repeller”. Ultrasonic devices emit sound. Mr Nusser, however, referred to the product as an “Electromagnetic Pest Control” device. Electromagnetic devices do not emit sound. This contradiction alone implies that the Advertiser is misleading consumers about the nature of the product.
Mr Nusser repeatedly claims that the product uses electromagnetism to drive out pests. However, no evidence is provided, other than a generic Wikipedia article about electromagnetism. This article makes no reference to pest control. In fact, the Complainant was unable to find any research supporting the notion of electronic pest control, aside from a Wikipedia page that stipulates that there is no evidence to support such claims.
Application of the Code of Advertising Practice
Given the new substantiation submitted, the ARB considered Clause 4.1 of Section II (Substantiation) to be relevant to this dispute.
Decision
Having considered all the material before it, the Directorate of the ARB issues the following finding.
Clause 4.1 of Section II requires advertisers to submit independent, objective substantiation for all direct and implied claims. It specifically points out that such substantiation should emanate from, or at the very least be evaluated and ratified by, an independent and credible entity who is considered an expert in the field to which the claims relate.
One of the main reasons for this is that the Directorate cannot be a knowledgeable expert in every possible field to which advertising relates. The purpose of independent verification is for the Advertiser to present the Directorate with a clear, concise explanation from an expert to confirm, in no uncertain terms, that the claims at issue have been proven to be true by appropriate and recognised means of testing or comparison. This effectively removes any “guess work” from the Directorate and ensures that it does not have to pronounce on issues, test results, functionality or other technical matters where it holds no knowledge or understanding.
In its ruling of 29 October 2024, the Directorate noted, inter alia, that it was particularly hard to determine to what extent Mr Nusser would constitute an independent and credible expert, as no real detail in this regard was provided. It accepted, however, that “Mr Nusser displayed a knowledgeable approach to his report”, and that expertise in low voltage electronic instruments may not require more qualification than those attributed to Mr Nusser (being an unspecified qualification in “Precision Engineering”).
However, it also pointed out that Mr Nusser only actually refers to one claim; “the product is an electronic device that uses the wiring of one’s home or office to produce a force field and drives out pests” (with a caveat from Mr Nusser that the term “force field” needed reconsideration). On this basis, the Directorate accepted that the claim “Simply plug the Pest Magic into electrical sockets and utilize your home circuit to send out a signal that irritates the nervous system of pests, driving them away without causing harm” was substantiated.
The Directorate’s ruling noted, however, that none of the other claims in dispute were referenced or even discussed by Mr Nusser, which is why they were not regarded as substantiated.
In its subsequent submissions, the Advertiser included an affidavit, signed by its Executive Chairman, which states, inter alia, that the product packaging has not changed in the past 14 years. It contends that this fact, coupled with Mr Nusser’s passing reference to having “… reviewed the claims and warnings on the packaging of the product and I concur they are accurately and reasonably stated” means that two more claims are, effectively, substantiated, as they appear on the very packaging Mr Nusser considered:
- “Covers up to 230 square metres” and
- “Environmentally friendly”.
The Directorate, however, is not prepared to make this jump in logic.
For one, the packaging placed before the Directorate contains images of flies and mosquitos. By the Advertiser’s own submission, this packaging has remained unchanged for 14 years, which means this is the same packaging Mr Nusser is said to have reviewed. However, the Advertiser’s initial submissions at the time of the previous dispute pertinently stated it had removed references to “flies, moths and ants” because these were claims that it felt could be “construed as misleading or unsubstantiated”. It also pertinently noted that the product had no efficacy against mosquitos.
The presence of these insects on the unchanged packaging suggests a disconnect; why would the Advertiser remove them on the basis that it could be misleading or unsubstantiated if Mr Nusser’s 2010 statements are meant to substantiate all claims on the product packaging, including the implied efficacy against ants and mosquitos?
The remaining claims held to be unsubstantiated in the previous ruling are clearly capable of objective verification without having to guess or make leaps of logic. It is improper for the Directorate to make assumptions about a 2010 report when the substantiating expert did not pertinently refer to these claims.
While the Directorate has sympathy for the fact that Mr Nusser is no longer in a position to verify the claims, there is no apparent reason why the Advertiser could not source independent and credible verification from another entity for the claims at issue.
Another valid issue highlighted by the Complainant is the apparent discrepancy in terminology. The Complainant pointed out that the product is advertised as an “Ultrasonic” pest repellent, whereas the submissions from Mr Nusser refer to it as an “Electromagnetic” pest repellent. These are very different technologies.
A quick dictionary, or even Google search, would show that “ultrasonic” refers to high sound wave frequencies (too high for humans to hear), whereas “electromagnetic” refers to electronic particles and magnetic charges between them that repel or attract.
Here too, there appears to be (at least, from the Directorate’s uninformed perspective) a disconnect. Mr Nusser makes no reference to sound waves and does not use the term “ultrasonic” when explaining the product’s functionality. As with the other claims, this is something that cannot be clarified by Mr Nusser, but could have been dealt with by another independent expert entity.
In the interest of acting as a safeguard against unsubstantiated claims, the Directorate has a duty to satisfy itself that, objectively speaking, the evidence provided appears to match the claims in question, and that there are no obvious discrepancies or conjecture.
The submissions before the Directorate, unfortunately, leave too many questions unanswered. In the absence of express verification and clarification from an independent and credible expert, the Directorate cannot simply accept that the remaining efficacy claims are substantiated. Effectively, all that was placed before the Directorate is the Advertiser’s argument that this is what Mr Nusser meant. The Directorate cannot interpret
Mr Nusser’s submissions in the same way. The Directorate notes that if the product does indeed work as claimed, it should be a fairly simple process for the Advertiser to instruct an expert to provide the necessary verification, rather than asking the Directorate to extrapolate from an old report.
Accordingly, the Directorate cannot accept the new substantiation, and the claims previously held to be unsubstantiated remain, at this time, unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
Instructions to members
The Advertiser is therefore reminded to withdraw the following claims:
- Claims to be effective within “2-4 weeks”,
- Any claimed efficacy against mosquitoes,
- Providing coverage of “230 square meters for comprehensive pest control”,
- Being an “Environmentally friendly” or “green”
Members of the ARB are instructed not to accept advertising with these claims.
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