Hoodia Slender Gel ~ Slender Max sanctioned!

Hoodia Slender Gel (aka Slender Max) has continued to flagrantly ignore the ASA rulings. Another bunch of complaints were laid with the ASA. This is a company claiming that there product, when rubbed on the skin, will result in weight-loss. Of course, no evidence that it works, and very unlikely – in particularly since it is highly unlikely that hoodia will be absorbed through the skin. Scam? You decide.

Well the ASA may eventually becoming a little tougher? See the ruling below.

03 Feb 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5432

BACKGROUND
In Hoodia Slender Gel / Dr H Steinman / 12857 (2 February 2009), the Directorate accepted the respondent’s voluntary undertaking to amend its efficacy claims on Hoodia Slender Gel product advertisement on its website, www.planethoodia.co.za and on promotional pamphlets.

The advertisement claimed that the product, inter alia,

• “SUPPRESSES APPETITE”, or “will assist with: SUPRESSING YOUR APPETITE & CRAVINGS”
• “REDUCES CRAVINGS”
• INCREASES ENERGY LEVELS
• “ENHANCES SKIN TONE”, OR “will assist with: … IMPROVING YOUR SKIN TONE”
• “will assist with: … REDUCING THE APPEARANCE OF CELLULITE”
• “will assist with: … INCREASING BODY DETOXIFICATION”.

On 23 June 2009 the Directorate ruled that the respondent’s advertising on its website, www.planethoodia.co.za, was in breach of its undertaking. No sanctions were imposed.

On 9 September 2009 the respondent was again found to be in breach of the Directorate ruling of 2 February 2009. Both parties were given an opportunity to comment on sanctions. On 2 November 2009 the Directorate imposed sanction in terms of Clause 14.2 of the Procedural Guide. It was a once-off pre-clearance sanction.

In Hoodia Slender Gel / Dr HA Steinman / 13994 (9 September 2009), the respondent undertook to remove the references to “Hoodia” from its advertising. On 21 June 2010 a breach allegation in relation to this ruling was upheld, and on 21 July 2010, the respondent was sanctioned in terms of Clause 14.3 of the Procedural Guide to pre-clear all its advertising for a period of six months (i.e. ending 21 January 2011).

On 29 October 2010 the ASA Directorate again ruled that the respondent’s website and print advertisement in Vrouekeur magazine of 20 August 2010 were in breach of the previous Directorate rulings.

A sanction in terms of Clause 14.5 of the Procedural Guide was imposed. In terms of this sanction, the respondent was instructed to publish a summarised version of the ruling in the Vrouekeur by no later than the end of January 2011.

SUBSEQUENT TO THESE RULINGS
On 14 December 2010 and again on 9 January 2011, the complainant lodged breach allegations regarding the respondent’s Hoodia Slender Gel product that appeared in Vrouekeur magazine.

The complainant, in essence, submitted that the respondent continued to use the same advertising as recently complained about in Vrouekeur magazine, in the People magazine dated 17 December 2010 as well as January edition of Finesse magazine.

The complainant requested the ASA to impose sanctions and issue an Ad Alert against the respondent. The complainant also requested the ASA to make a ruling against Clicks and Dischem for being involved in ongoing store marketing, and supporting unsubstantiated product.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
Given the breach allegation, Clauses 14 (Sanctions) and 15 (Enforcement of rulings) of the Procedural Guide were taken into account.

RESPONSE
The respondent submitted, inter alia, that the complainant is in fact correct that it is in breach of the ASA’s rulings as it continued making weight loss claims in relation to Hoodia and it was still using the name Hoodia on its products.

It submitted, inter alia, that one of the complainant’s initial complaints related to the inclusion of “Hoodia” in the name of its product “Hoodia Slender Gel”. It erroneously assumed that if it volunteered to take the name “Hoodia” away from its products it would be left alone regarding the name “Slender Gel”.

It changed the names of its “Hoodia Slender Capsule” and “Hoodia Slender Tincture. After recalling all its packaging, pop-up banners, posters, leaflets, general point of sale paraphernalia and replacing its products with the new branding name of “Slender Gel”, the complainant immediately complained about the remaining name and references to “Slender”.

The respondent submitted, inter alia, that the financial strain of changing the packaging, coupled with loss of sales related to changing the brand name, and the fact that the complainant was not going to stop, gave it no alternative other than to use the name “Hoodia” and related claims in its marketing.

The respondent also argued, inter alia, that people were asking what was in its product, as they thought Hoodia was taken out. It thought by removing the name which is the main ingredient of the products was more misleading to the general public and by law it has to show the contents of the product.

The respondent asked the ASA Directorate to be lenient as possible with it, given the above, and bearing in mind that it has invested a lot of money and lost a lot of business in changing its name and/ or packaging several times already.

The respondent also stated that it has published the ordered summarised version of the ruling in the January 2011 edition of Vrouekeur magazine.

Finally, the respondent also asked “the Directorate to consider a condonation of appeal allowing us to reinstate the product name ‘Hoodia’, as we did not pick up the implications on the ruling regarding the name ‘Hoodia’, which we now realise, that we should have fought for”.

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

Preliminary issues
Request to join Clicks, Dischem and Caxton to the matter

The complainant asked whether it would be possible to include the above entities as respondents on the basis that they frequently carry the respondent’s unsubstantiated advertising.

In this regard, it is noted that the primary responsibility for ensuring compliance with any ASA ruling lies with the relevant advertiser. It would not be appropriate to hold the retail stores and relevant publishers that carry the respondent’s advertising or products accountable at this time, and the Directorate does not see a need to at this stage. However, the rulings are public documents and may be disseminated to any interested party.

In addition, should the ASA issue an Ad Alert to its media members, which include print and broadcast media, it will have farther reaching implications than simply joining Clicks and Dischem and Caxton to the matter.

Request for a late appeal

The respondent, when responding to the breach allegation, asked “the Directorate to consider a condonation of appeal allowing us to reinstate the product name ‘Hoodia’…”.

It is noted that the respondent did not, however, supply any valid reasons for its late request. In addition, it is significant to note that the respondent gave the undertaking to remove the word “Hoodia” from its product name on own volition in 2009 (refer Hoodia Slender Gel / HA Steinman / 13994). Despite two subsequent rulings on this very issue, one of which imposed a pre-clearance sanction on the respondent (refer ruling is in the 13994 matter dated 21 June 2010 and 21 July 2010), the respondent has never asked to reinstate the name “Hoodia”. It appears to want to do so now because it is faced with the possibility of additional sanctions.

Furthermore, in Herbex / HA Steinman / 8020 (5 February 2008), the Final Appeal Committee considered, inter alia, a late request for an appeal filed by the complainant in that matter. It noted, inter alia, as follows:

“In regard to the filing of the Respondent’s reasons for good cause by way of affidavit, it was pointed out in argument that in the Mars v Nestle decision by this Committee, it was said that an applicant “should” file his reasons on oath. Consequently, it is not peremptory, but it is clearly preferable for an application for condonation to be supported by an affidavit and the Directorate should ensure that complainants do so in future”.

It is also trite that any application for condonation should state reasons for the late appeal, the grounds on which the party seeking condonation are appealing the ruling in question and the prospect of success, should the condonation for late filing of the appeal be granted. The respondent has not fulfilled any of these requirements.

As such, the Directorate cannot accept this request as a legitimate application for condonation at this time. The respondent may, if it elects to, submit a formal request for condonation of a late appeal following the criteria set out above.

Breach allegation
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies.

The respondent’s history with the ASA reveals that since February 2009, the respondent has had a dozen or so rulings issued in relation to its advertising. The fact was highlighted in the Directorate ruling of 29 October 2010. A list of the rulings highlighted 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.

  21 July 2010: Respondent is sanctioned in terms of Clause 14.3 of the Procedural Guide (six month preclearance sanction)
  29 October 2010: Respondent again found in breach of previous rulings, and sanctioned in terms of Clause 14.5 of the Procedural Guide (Summarised ruling).

• 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 / 147262 March 2010: Complaint upheld, respondent instructed to withdraw its advertising.

Given the above it is clear that the respondent is not only ignoring previous adverse rulings, but also not abiding by sanctions imposed (refer Hoodia Slender Gel / Dr HA Steinman / 12857 (2 November 2009), Hoodia Slender Gel / HA Steinman / 13994 (21 July 2010) for context) and including the recent Hoodia Slender Gel / H A Steinman / 13994 / 12857 (29 October 2010).

What is particularly concerning is that the latest advertisement that gave rise to the breach allegation consists of “before” and “after” type photographs of a “Cheryl Tanga” from Bloemfontein and a Robin Clayton” from Athlone, who claim to have lost specific amounts of weight. In addition the statements “Ek het sonder enige oefening 2 [sic] rok grotes (46 kg) in minder as 12 maande verloor!” (which translates to “I lost 2 dress sizes (46 kg) in less than 12 months with no exercise?”) and “Geen newe-effekte … Net ‘n gewigsverlies produk wat WERK!” (which translates to “No side-effects … just a weight loss product that WORKS!”) appear with prominence in the advertisement.

In addition to this, the following claims are also made with prominence and confidence:

• “Uitstekende Eetlus Demper” (Excellent Appetite Suppressant)
• “Uitstekende Vetverbrander” (Excellent Fat Burner)
• “Voel Onmiddelik Versadig” (Feel Full Immediately)
• “BESTANDELE WAT KLINIES BEWYS IS” (Clinically proven ingredients).

Not only does this clearly contradict all previous rulings issued, but it screams in the face of the respondent’s very first response received (refer Hoodia Slender Gel / Dr HA Steinman / 12857 (2 February 2009) for context), in which it conceded that there are no studies to show that Hoodia or its products have any effect on weight loss. in fact, to date, no substantiation of any kind has been submitted for scrutiny.

Furthermore, despite the pre-clearance sanction imposed on the respondent in Hoodia Slender Gel / Dr HA Steinman / 13994 (21 July 2010), the Directorate has no evidence that the respondent obtained such pre-clearance prior to placing the advertisements that gave rise to the latest breach allegation.

Similarly, in contravention of the Hoodia Slender Gel / Dr HA Steinman / 12857 (2 November 2009) ruling, the respondent is still prominently displaying the word “Hoodia” on its packaging and material on its website.

Accordingly, the respondent’s website material and print advertisements in Vrouekeur, Finesse, Essential and People magazines are in flagrant breach of the previous Directorate rulings and therefore in contravention of Clause 15 of the Procedural Guide.

The breach allegation is upheld.

Sanctions
Given this breach, and given the respondent’s clear disregard for ASA rulings, the Directorate is satisfied that sanctions are warranted. A cursory review of the rulings indicates that the respondent has already received the following sanctions:

• On 2 November 2009 sanction in terms of Clause 14.2 of the Procedural Guide was imposed on the respondent (Once-off preclearance of its advertising),
• On 21 July 2010 respondent was sanctioned in terms of Clause 14.3 of the Procedural Guide (six month preclearance sanction ending 21 January 2011).
• On 29 October 2010 the respondent was sanctioned in terms of Clause 14.5 of the Procedural Guide to publish a summarised version of the ruling. The respondent alleged that it has complied with this sanction.

It is clear from the above that the respondent has been sanctioned three (3) times within the period of two (2) years and clearly the above sanctions did not deter the respondent from flagrantly disregarding the ASA Directorate rulings.

Given the above sanctions already imposed, a harsher sanction is warranted at this stage as previous sanctions proved ineffective. In addition, the respondent’s actions clearly have the likely consequence of bringing advertising into disrepute.

Having regard to the respondent’s apology, which gave no material justification for its continued disregard for the ASA and its rulings, the Directorate believes that the respondent was looking to circumvent a ruling, and that a mere apology in these circumstances serves no purpose.

Given the above, the sanction of adverse publicity in accordance with Clause 14.4 of the Procedural Guide is hereby imposed on the respondent. In terms of this sanction, the respondent is to publish an adverse publicity statement on the following basis:

The ASA will prepare a statement that is to appear in the magazines listed below, which appear to carry the respondent’s advertising on a regular basis (as is evident from the “Where did you see the Slendermax Ad?” poll on the respondent’s website).

a) Finesse
b) You
c) Huisgenoot
d) People
e) Essentials
f) Your Family
g) Heat
h) Woman & Home
i) Longevity, and
j) Soul
k) Vrouekeur (added to the list because it is evident that the respondent is also using this magazine for advertising)

The statement will be in the form of a full page, full colour advertisement, which the ASA will prepare and disseminate to the respondent as well as the relevant magazines. The production and media costs are to be borne by the advertiser.

In addition, the Directorate will issue an Ad Alert to its members informing them of this sanction, and requesting them not to accept any of the respondent’s advertising until such time as the Directorate has received proof that the required statement has appeared as instructed in all of the magazines listed above.