Inversion Femme – ASA ruling

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Posted 27 July 2012

A consumer complaint  against a print advertisement for Inversion Femme appearing in the Rooi Rose magazine during February 2012 was laid with the ASA.  It contains, inter alia, the following claims: • look younger, naturally; • at last the signs of ageing can be reversed without painful surgery; • … 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.

In essence the complainant submitted that he was unable to find any evidence that supports the claims made for this product. The ASA examined the evidence supplied by the company, and agreed with the consumer that the claims were not sufficiently supported by evidence. 

Inversion Femme / HA Steinman / 19448
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Homemark (Pty) Ltd Respondent

23 Jul 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6176

Dr Steinman lodged a consumer complaint against a print advertisement for the respondent’s Inversion Femme product appearing in the Rooi Rose magazine during February 2012.

The advertisement promotes the product as a “4-IN-1-TEENVEROUDERING” (4-in-1-Anti Ageing) product. It contains, inter alia, the following claims:

“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).

COMPLAINT
In essence the complainant submitted that he was unable to find any evidence that supports the claims made for this product. If any exists, it would likely not have been peer-reviewed or published in a peer-reviewed journal. As a result, he believes that there is no proof that this product will result in the claims made.

The complainant also referred to a Directorate ruling made in the matter Clicks Slim Drops Herbal Tincture / HA Steinman / 17986 (24 October 2011), in which the Directorate made the point that ingredient-based substantiation is not adequate.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant.

RESPONSE
The respondent firstly pointed out that the Code does not expect advertisers to have clinical trials, or that studies relied on be peer-reviewed or published in a peer-reviewed publication. While this would obviously be preferable, it is not essential.

In support of the claims, it submitted five confidential studies conducted by the Pharmacology Department of the French Université Victor Segalen, one dealing with the product’s activity on weight, one with its activity on hair, one with its activity on nails, one with its activity on wrinkles and one with its activity on skin hydration. The respondent explained that it did not have permission from the supplier to divulge the contents of these trials to any person other than regulatory authorities. As such, confidentiality was granted in terms of Clause 5.1.3 of Section I. In addition to this, it submitted a letter from Dr Beverley Summers of Skin Technology CC.

The respondent pointed out that the product has been on the market since mid 2006, and over the past five years, it has had virtually no complaints from customers.

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

The starting point of any ruling dealing with substantiation would be to determine what the likely takeout of the contested claims would be.

The respondent listed three claims, arguing that “… there is no proof that this product will result in the claims being expressed in the advert”. The claims are:

“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).

It should be noted 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 correctly noted that the ASA Code does not specifically require clinical trials. However, it is trite that an advertiser should produce product-specific verification for the claims as they appear in the advertising. The research relied on in this instance, is product-specific. The next question is therefore whether Dr Summers should be accepted as an independent and credible expert in the field to which the claims relate.

It should be noted that Dr Summers has twice had matters where she “approved” efficacy claims, only to have an independent arbitrator find against them (refer Slim Coffee / HA Steinman / 12988 (1 June 2007) and Peel Away the Pounds / Dr HA Steinman / 1462 (7 March 2007) for more detail). However, both these matters involved a weight loss product, which this product does not appear to be. In fact, no weight loss claims are made in the advertisement. While there is a reference to an “improvement in figure”, the complainant has not made out an argument that this implies weight loss. The claims appear rather to be of a cosmetic nature, as they relate to nails, hair and a youthful appearance.

In Epil Stop & Spray / V Bingham & Another / 9953 / 10026 (28 May 2009), the Directorate noted as follows:

“The Directorate has accepted Dr Beverley summers as an independent credible expert in the field relating to cosmetic products on numerous occasions, and she has been used as a substantiating expert for such products for a number of years. She is a registered pharmacist with a doctorate in clinical pharmacy and, inter alia, runs a clinical testing facility within the pharmacy department at the University of Limpopo. Her expertise in the cosmetic field is often relied on by companies wanting to substantiate their claims”.

Similarly, in Krayons Baby / Johnson & Johnson / 3449 (12 September 2006), the Directorate noted that:

“Dr Summers has been accepted as an independent and credible expert in cosmetic matters in numerous ASA rulings (see for example Sunsilk / Proctor & Gamble (17 November 2005)). There is nothing before the Directorate in the current matter to change this approach”.

The product at issue appears to be pharmacological in nature, and ingested with a cosmetic purpose. Given Dr Summers’ pharmacology and cosmetic background, she appears to be in a uniquely appropriate position to understand and interpret the related evidence.

Accordingly, the Directorate is satisfied that she meets the criteria of being an independent and credible expert in the field to which the claims relate.

However, Dr Summers’ verification does not appear to be unequivocal. She expresses concerns over the fact that “… the studies have no comparative controls/reference points (such as untreated or placebo control groups) …” and concludes that “… the various claims made … appear to be adequately substantiated, save for the concerns highlighted …”

As has been held on numerous occasions, the Directorate is not a technical or scientific body, and therefore frequently has to rely on an opinion form an independent and technical expert in the field. In Lifebouy / Dettol / 14813 (27 August 2010) the Advertising Industry Tribunal pointed out, inter alia, that the role of an independent and credible expert is “… to verify the credibility and veracity …” of such documentary evidence.

In A Vogel Neuroforce / S Kaye / 16323 (9 November 2011), the Advertising Standards Committee (the ASC) emphasised the point that if an “expert” is ambivalent or ambiguous in his / her verification, it cannot be accepted.

The Directorate is hesitant to accept that efficacy claims are supported when the expert relied on has reservations about the research. Dr Summers explains that the EU authorities have permitted the product to be marketed, but this appears to be in relation to the safety for consumption of the product rather than efficacy.

Given the concerns expressed by Dr Summers, and given that her substantiation is stated to apply “… save for the concerns highlighted …”, the Directorate is not, at this time, satisfied that the claims are unequivocally substantiated by the studies relied on. In fact, Dr Summers’ comments appear to suggest that the studies should not carry as much weight as the respondent would like.

Accordingly, the claims disputed are currently in contravention of Clause 4.1 of Section II of the Code.

The respondent is therefore instructed to:

Withdraw the claims with immediate effect upon receipt of this ruling;

Ensure that the claims are withdrawn from all media in which they appear within the deadlines stipulated in Clause 15.3 of the Procedural Guide;

Refrain from using the claims in their current context again unless new substantiation has been submitted, evaluated, and a new ruling issued.

The complaint is upheld.

 

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