BACKGROUND In a ruling dated 21 June 2010, the Directorate ruled that the respondent was in breach of its earlier ruling dated 9 September 2009, as the respondent’s packaging still used the name “Hoodia” despite the respondent’s original undertaking to remove all references to Hoodia from its packaging. 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.
HOODIA SLENDER GEL / DR H STEINMAN / 13994
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman: Complainant(s)/Appellant(s)
Planet Hoodia: Respondent
21 Jul 2010
In a ruling dated 21 June 2010, the Directorate ruled that the respondent was in breach of its earlier ruling dated 9 September 2009, as the respondent’s packaging still used the name “Hoodia” despite the respondent’s original undertaking to remove all references to Hoodia from its packaging.
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 it recommended the sanctions to be imposed on the respondent for ongoing misleading of consumers. It asked the ASA to be guided by its previous rulings and to impose similar sanctions.
The respondent submitted that it cannot be misleading consumers by calling a gel made from Hoddia “Hoodia Gel”.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The complainant requested the ASA to be guide by previous sanctions imposed on the respondent. The respondent did not submit any arguments on the issue of sanctions. It merely argued that the name cannot be misleading.
While these comments are noted, the Directorate wishes to emphasise that the ruling dated 21 June 2010 already established that the respondent was in breach of an earlier ruling. The respondent’s latest comments appear to argue the merits of that decision. This is not appropriate, as the decision has been made, and the respondent did not appeal it. As such, the Directorate is only tasked with determining whether or not sanctions are appropriate at this stage and which sanction, if any, to impose on the respondent.
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, and possible harm done to consumers or competitors as a result of non-compliance.
A cursory look at the respondent’s history with the ASA reveals that since February 2009, the respondent has had ten rulings issued in relation to its advertising. Of these ten, two were voluntary undertakings to change its advertising, three were upheld on the merits, four were instances where the respondent was found to be in breach of previous rulings, and one imposed a sanction on the respondent in terms of Clause 14.2 of the Procedural Guide. A list of the rulings appears below:
- Hoodia Slender Gel / Dr HA Steinman / 128572 February 2009: Respondent voluntarily undertook to amend its advertising;
22 June 2009: Respondent found in breach of above ruling, no sanctions imposed;
9 September 2009: Respondent again found in breach, Directorate invites comments on sanctions;
2 November 2009: Sanction in terms of Clause 14.2 of the Procedural Guide imposed on the respondent.
- Hoodia Slender Gel / HA Steinman / 139949 September 2009: Respondent voluntarily undertook to amend the relevant advertising;
21 June 2010: Respondent found in breach of this undertaking, Directorate invites comments on sanctions.
- Slender Gel / HA Steinman / 1479518 February 2010: Complaint upheld, respondent instructed to withdraw its advertising;
12 May 2010: Respondent found in breach of above ruling, no sanctions imposed.
- Slender Max Tincture / HA Steinman / 147962 March 2010: Complaint upheld, respondent instructed to withdraw its advertising.
- Slender Caps / HA Steinman / 14726
2 March 2010: Complaint upheld, respondent instructed to withdraw its advertising.
In light of the above, the Directorate contemplated whether or not a general pre-clearance sanction as provided for in Clause 14.3 of the Procedural Guide is warranted. For this sanction to be imposed, the respondent must have had more than one adverse ruling in the last 12 months. In addition, the Directorate is obliged to consider, inter alia, what action the respondent took to ensure compliance, the extent of exposure of the offending advertising, whether the respondent acted deliberately to circumvent or disregard the Code, the number of times this sanction has been imposed against the respondent before, and whether or not the respondent’s actions are likely to bring advertising into disrepute.
From the above it is clear that the respondent has had more than one adverse ruling in the 12 month period preceding the breach in the current matter. All these rulings relate to the respondent’s weight loss products. In addition, it is somewhat concerning that this was the fourth time that the respondent was found in breach of previous rulings. Another aggravating factor is that the respondent has previously received a once-off pre clearance sanction in terms of Clause 14.2 of the Procedural Guide. Finally, the Directorate is aware that the slimming industry at large has been the subject of some controversy in recent history. The respondent’s failure to substantiate its weight loss claims and failure to comply with adverse rulings is therefore likely to bring the advertising industry into disrepute.
Accordingly, the Directorate, at its discretion, imposes a sanction on the respondent in terms of Clause 14.3 of the Procedural Guide. In terms of this sanction, the respondent is required to submit all future advertising to the ACA Advisory Service for approval prior to publication, at the cost of the respondent.
It is noted that this sanction is valid for a period of six months from the date of this ruling.
In light of the above, an Ad-Alert will be sent to all ASA members advising them of this sanction.