Posted 11 November 2013
The ASA has previously ruled against a number of claims being made for this product. In this breach complaint, the complainant specifically referred to the claims “SLOW DOWN AGEING” and on “Anti-Age Total Beaute” [sic] and “Anti-Aging Total Beauty”. The ASA evaluated Homemark’s response and concluded that “Given the alteration in context, and given the noticeable amendment to the claims at issue, the Directorate is of the view that the current e-mail advertisement cannot be said to have breach the original ruling”.
05 Nov 2013
In Inversion Femme / H Steinman / 19448 (23 July 2012) the Directorate considered the following claims promoting the respondent’s Inversion Femme product:
“Lyk jonger, natuurlik” (look younger, naturally);
“Uiteindelik kan die tekens van tyd omgekeer word sonder pynlike chirurgie” (at last the signs of ageing can be reversed without painful surgery);
“… wetenskaplike studies by vroue wat dit ten minste twee keer per dag vir twee maande geneem het, het aangetoon dat 50% van dié vroue ’n afname in haarverlies, 70% versterking van naels en 27% ‘n verbetering in figuur getoon het” (… scientific studies in women who used the product at least twice a day for two months, showed that 50% of them had reduced hair loss, 70% showed a strengthening of nails and 27% an improvement in figure).
The point was made that “… the third claim effectively gives context to the first two. Arguably, without any context, it would be difficult to determine what type of substantiation (if any) would apply to the first two claims. In fact, these claims could perhaps (in isolation) even be regarded as mere puffery or opinion, rather than an objectively verifiable fact in a manner that Clause 4.1 of Section II envisages. The fact that the third claim specifically contextualises the efficacy in terms of reduced hair loss, stronger nails, and improved figure, means that the overall efficacy, including “turning back the signs of ageing” should be viewed in this manner.”
The respondent’s substantiation at the time was found to be insufficient, and the respondent was instructed to refrain from using these claims again in their current format.
SUBSEQUENT TO THE RULING
On 21 October 2013 the complainant lodged a breach complaint against an e-mail advertisement received from the respondent for its Inversion Femme product. The complainant argued that similar claims appeared on the e-mail advertisement and that this appears to be a flagrant breach of the previous ruling.
The complainant specifically referred to the claims “SLOW DOWN AGEING” and on “Anti-Age Total Beaute” [sic] and “Anti-Aging Total Beauty”.
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, inter alia, that the product no longer appears on its website, nor does it form part of its current e-mail campaign. Statements such as “look younger naturally” and “signs of ageing can be reversed without painful surgery” are statements of puffery or opinion rather than objectively verifiable claims. The same applied to a statement such as “Slow Down Aging”. This stance was taken as a result of the previous Directorate ruling.
In good faith, the respondent submitted that it will remove the claim from the website and e-mail campaigns and it will not reinstate it in future.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. To do so requires a consideration of whether or not the current claims communicate the same message as the original claims.
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”.
When considering the current claims compared to those originally objected to, there appears to be a difference:
In the original ruling the Directorate made a point that the third claim, namely “… wetenskaplike studies by vroue wat dit ten minste twee keer per dag vir twee maande geneem het, het aangetoon dat 50% van dié vroue ’n afname in haarverlies, 70% versterking van naels en 27% ‘n verbetering in figuur getoon het”, effectively gave context to the first two claims. the Directorate went so far as to state that:
“… without any context, it would be difficult to determine what type of substantiation (if any) would apply to the first two claims …”
On the current advertisement the contextualising third claim does not appear. This would suggest that the original context of factuality no longer exists. In addition to this, it is noted that the original claims had a distinct sense of reversing ageing, whereas the current ones appear to suggest the slowing down or perhaps halting of the appearance of ageing. Going in reverse and slowing down are clearly not the same thing. While the difference is perhaps subtle, it is distinct enough to convince the Directorate that the current claims are not communicating the same message as before, but rather a slightly different message.
It would appear that the respondent’s offer to withdraw the advertisement and related claims in good faith may well address the complainant’s concerns. The Directorate is, however, not able to consider this undertaking at this time, because it would amount to a merit-consideration of the new claims, which is not what the Directorate is tasked to do at present.
Given the alteration in context, and given the noticeable amendment to the claims at issue, the Directorate is of the view that the current e-mail advertisement cannot be said to have breach the original ruling in a manner that would contravene Clause 15 of the Procedural Guide.
The breach complaint is dismissed.
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