ImuPro breach ruling

Posted 11 March 2011

This ASA ruling against the complainant, is interesting for it relates to changing of website contents, integrity, proof and mainly, being careful to copy the contents of a website before laying a complaint!

In essence: I noticed that the ImuPro website was still making claims contrary to the ASA’s previous rulings. I laid a complaint. The ASA sent the complaint to Dr York, who claimed that the links I spoke about were no longer present and probably in the cache of my browser (unlikely for I viewed this page after having cleared my cache – done regularly). The ASA checked his claims that the links were not active and confirmed this to be true. Of course, I stand by my claim.

Considering that the ASA were not able to access the website page, the complaint was dismissed. I re-iterate, I feel so strongly about individuals being duped by the claims for this test, that I have laid a formal complaint with the Health Professions Council of South Africa against Dr York.

Imupro / HA Steinman / 14955
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Molecular Diagnostics Services (Pty) Ltd Respondent


01 Mar 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5975

BACKGROUND
In Imupro / H A Steinman / 14955 (11 February 2010), the Directorate accepted the respondent’s voluntary undertaking to withdraw an advertisement containing the claim “the internationally respected ImuPro Food IgG Intolerance Test can pinpoint food intolerances”.

The undertaking was accepted on condition that the claim was not used again in future.

Subsequent to the undertaking, the respondent submitted documentation in an attempt to substantiate the claim in dispute. In a ruling dated 13 July 2010, the Directorate held, inter alia, that the claim in dispute has not yet been adequately substantiated in terms of Clause 4.1 of Section II, and therefore the original ruling remained binding.

On 4 March 2011 the Directorate upheld a breach allegation and ruled that it was satisfied that the respondent’s current flyer and website advertising was in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.

No sanctions were imposed, but the respondent was cautioned that the responsibility to ensure compliance with the ASA ruling lies with it, and that further justified breach allegations may well result in sanctions being imposed.

SUBSEQUENT TO THE RULING
In a letter dated 1 February 2012, the complainant lodged a breach allegation against the respondent’s advertising. Specifically, the complainant noted that the respondent continues to advertise and make unsubstantiated efficacy claims on its website http://www.mdsafrica.net/site/files/6523/imupro%20Flyer%20R10%20(WEB).pdf despite the previous ASA rulings.

The complainant further submitted that the respondent’s lack of contrition and lack of remorse is illustrated by the fact that its website continues to make false claims and requested that the ASA take further action and impose the harshest sanctions possible.

Attached to the complaint was a screenshot of the respondent’s www.wellpro.co.za website, with the words “Accessed on 09:40 on 18th July 2011”. The complainant did not, however, comment about this or explain its relevance. As such, the Directorate did not, at this point in time, consider this attachment.

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.

RESPONSE
The respondent replied as follows:

“To answer the complaint specifically – please note that the above snapshot [ex facie referring to the URL referred to above] has not been accessible by the public since about March 2009. The IT people we use inform us that only if you happened to have saved that snapshot would you be able to access it – you can try for yourself. I can only conclude that this reference is from Dr Steinman’s archives…”

It invited the Directorate to attempt to access the link / URL.
In addition, the respondent questioned the complainant’s motives, based on the argument that the URL is not accessible unless the information has been stored on one’s computer at a prior occasion.

The point was also made that the respondent’s amended material had in fact been sent directly to the complainant months ago for comment.

When the Directorate pointed out that it too was able to access the URL complained of, it explained that the link accessible ONLY if one had the exact URL. This is a very old URL and would suggest that the complainant has had it saved for some time. It has now been removed, and the respondent confirmed that the link was not accessible via its actual websites.

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

The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling, specifically in relation to the URL as provided by the complaint.

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.

It appears, from the submissions at hand, that the specific URL was indeed available subsequent to the previous rulings. However, as was pointed out by the respondent, it was not accessible from the respondent’s website. One would, have to type that exact URL (http://www.mdsafrica.net/site/files/6523/imupro%20Flyer%20R10%20(WEB).pdf, in a browser window to access the relevant page.

Under ordinary circumstances, this is not a likely occurrence. The Directorate was also not able to access the relevant URL by any other means than pasting it in its entirety on a browser window. This appears to support the respondent’s contention that it was an outdated link that was not accessible via its website, and not actively in use.

While technically true that the respondent should have been more cautious, the Directorate does not regard this as deliberate contravention of the ruling. It is not common for people to browse the internet using such long URLs. Ordinarily, one would simply look up a specific website address or search a specific topic.

The advertising at issue (i.e. the one contained on the outdated URL) is not accessible either via a Google search for the claim concerned or via the respondent’s www.mdsafrica.net and www.wellpro.co.za websites. At the time of ruling, the relevant URL had also been removed.

Given the above, the Directorate does not believe this is a breach of the previous rulings.

The breach allegation is therefore dismissed.

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