Posted 01 June 2012
This ruling is interesting for it illustrates that if an ASA complaint is not constructed correctly, then the ASA cannot consider the merits of the complaint, and will reject it.
Note: I have evaluated the claims and the ingredients and there is no proof that this product can result in the extraordinary claims being made for it. Claiming that no dieting is required reeks of a scam product. A new (and correctly argued) complaint has been laid with the ASA.
Update: 06 November 2012: Dangerous substance hidden in Kangmei
|Kangmei Slimming Capsules / HA Steinman / 19718|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Eyeota Traders cc t/a Leangenie Respondent
29 May 2012
Dr Steinman lodged a consumer complaint against website advertising appearing on, inter alia, the following websites:
He explained that “An email advert for this product has led me to the following websites where this product is advertised”.
In addition, he specifically quoted the following claims in relation to these websites:
“Kangmei Slimming Capsule speeds up your metabolism and burns fat, naturally, safely and without side effects.
100% NATURAL & SAFE
NO MAJOR SIDE EFFECTS
NO EXERCISE OR DIET REQUIRED
EXPECT TO LOOSE 1.5-3KG WITHIN THE FIRST WEEK
Kangmei Slimming Capsules … gives you a complete detox, breaks down all fat oil and dirt in your system and enhances your metabolism.
It is made from plants such as Green Tea, Chinese Hawthron, Lotus Leaves, Poris Cocos, Cacciatore seed and Chrysanthemum flower.
It can reduce body weight and body fat total, resulting in short-term rapid weight loss goals, as well as reduction on waist, abdominal and hip circumference.
It does not induce anorexia, diarrhea [sic], or rebound, and is safe and healthy”.
“Together the ingredients have a powerful fat burning effect on the body, resulting in short-term rapid weight loss as well as a marked reduction in the abdominal (midsection), and hip circumference, in addition, the use of Kangmei promotes a non-rebound effect (meaning body fat is less likely to return if use is discontinued).
It is also perfectly safe to use the product to aid in weight maintenance.
At least 1.5-3 kg per week. Although amounts in excess of 10kg in 14 days have been reported, results differ from person to person.
It really works
Increase energy levels
Detoxes the body
Burns body fat
No harmful side-effects
No drastic diet plan
No exercise required”
Apart from listing all the claims as above, the complainant simply stated:
“A number of claims are made for this product that I argue cannot be substantiated, i.e. there is no proof that the claims are possible for any or at best, a significant number of users of the product, and therefore the claims are misleading”.
After quoting the claims listed above, and providing contact details for the respondent, he simply states:
“I argue that this product makes unsubstantiated claims and therefore contrary to a number of ASA regulations. A number of other products with dubious claims are also advertised on some of these websites, and I request that the ASA point out that these are also subject to ASA regulations”.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.1 of Section II of the Code (Substantiation) was considered relevant.
The respondent firstly noted that it is not the owner of Kangmei Slimming capsule, but the resale distributor of the product, but merely purchases it from the supplier. LeanGenie is a brand banner under which the respondent market and distribute a range of natural health and well being products.
It was also submitted that the websites http://www.kangmeislimming.com and www.kangmeislimmingcapsule.co.za do not belong to the respondent and that the respondent is not affiliated with these websites in any way.
The respondent, however, did argue the merits in relation to the claims appearing on http://www.leangenie.co.za. For the reasons below, however, the Directorate does not need to consider these arguments at this time.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Over the years, the complainant has lodged numerous complaints with the ASA against a large number of, inter alia, weight loss products. It would appear, however, that this particular complaint was drafted in a hurry without much concern over factual accuracy or providing grounds for the objection.
Clause 3.1.3 of the Procedural Guide stipulates that “The grounds on which the complaint is based must be clearly stated”.
In Promato / HPA / 9668 (2 Jun 2008) it was, inter alia, held that:
“Although the Directorate attempts to investigate any complaint where the grounds for objecting are obvious, it cannot investigate a complaint that does not clearly set out a basis for the objection, as this could prejudice either party. The Directorate must abide by the principle of audi alteram partem. Therefore, if the complaint is so vague as to prevent the respondent from properly addressing it, it would be inequitable to investigate and rule on the matter.”
More significantly, in Nature’s Choice Products / MacCain Foods / 16283 (12 November 2010), the Directorate ruled as follows:
“The complainant did not clarify why it thought the claims in the respondent’s website were unsubstantiated, misleading and dishonest. The complainant simply submitted that the ASA should call upon the respondent to submit substantiation for its claims and furnish reasons why its claims do not contravene Clauses 2 and 4.2.1 of Section II of the Code. This is akin to alleging that someone had committed theft and then asking the court, in the absence of evidence, to compel the accused to prove that he did not commit such a crime. Not only does such an approach go against the principles of natural justice, but it effectively precludes the Directorate from investigating the matter and ruling because there are no grounds of objections.”
Lastly, in Sunlight Dishwashing Liquid / Ajax Dishwashing Liquid / 14034 (27 November 2009), the Advertising Industry Tribunal (the AIT) held, inter alia, that:
“… the function of the Directorate (and indeed all the other ASA bodies) when adjudicating complaints, is to consider and rule on complaints brought to its attention by complainants (Clause 8.1 and 2 of the Procedural Guide). This is an adjudicative function and in doing so the Directorate is required to act as a neutral and independent arbiter. Its task is not to formulate complaints or to expand on or refashion complaints brought to its attention. It is limited to a consideration of the complaint as framed and articulated by the complainant”.
The complainant has not referred to anything that suggests he has done more than simply made an allegation. While the Directorate does not require actual proof or substantiation for a complaint made, the complaint still has to be based on motivating grounds for objecting, and not a mere allegation.
The complainant effectively quotes claims from two websites, submits that he is of opinion that they are unsubstantiated (without explaining why he holds this belief) and alleges that the product is contrary to a number of ASA regulations (which are not identified or referred to).
The Directorate also notes that at least the www.kangmeislimmingcapsules.co.za and www.kangmeislimming.com websites do not appear to belong to the respondent, adding to the perception that the complaint was drafted in a haphazard manner.
Accordingly, the Directorate cannot consider these objections at this time.
Should the respondent wish to, it can lodge a new complaint in accordance with the provisions of the Procedural Guide, clearly articulating his concerns and motivating his grounds for objecting.
The complaint as is currently before the Directorate is dismissed.
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