Posted 25 October 2013
As mentioned in a previous post, Marcelle du Plessis does not pay attention to societal norms or regulations or ASA rulings. In this breach complaint, i.e., she continues to make unsubstantiated claims for her products, she did not ever bother to respond to the ASA’s correspondence.
23 Oct 2013
In Magnesium Inflama Spray / H Steinman / 19028 (30 July 2012) the Directorate found the respondent’s advertising as a whole communicated unsubstantiated efficacy claims for its “Magnesium Inflama Spray” product in contravention of Clause 4.1 of Section II of the Code.
The advertisement referred to the company as “BodyDetox”, and was headed “Spuit jou PYN weg!” (Spray your PAIN away!). It promoted the respondent’s “Magnesium Inflama SprayTM as a unique product containing magnesium from the Dead Sea, which is absorbed through the skin, and may help reduce “Suur” (Acid), “Verkalking” (Calcification), “Inflammasie” (Inflammation) and “Pyn” (Pain). It also listed the following conditions:
• “Hoofpyn/Migraine (headache / migraine)
• Geswelde Voete (swollen feet)
• Sportbeserings (sports injuries)
• Hoë bloeddruk (high blood pressure)
• Osteoporose (osteoporosis)
• Spatare (varicose veins)
• Rugpyn (back ache)
• Nekpyn (Neck pain)
• Artritis (Artritis)
• Allergieë (Allergies)
• Alle PYN (All PAIN)
• Sooibrand (heartburn)
• Waterretensie (water retention)
• Muskiet- of Insekbyte” (mosquito or insect bites)
The respondent was instructed to withdraw the advertising in its current format within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future. The ruling specifically emphasised that Clause 15.5 of the Procedural Guide required it to withdraw its advertising from all media.
On 14 March 2013 the respondent was found to have breached the ruling. On 4 June 2013 a sanction in terms of Clause 14.3 of the Procedural Guide was imposed on the respondent. In terms of this sanction, the respondent was instructed to have all its advertising pre-cleared by the ACA Advisory Services for a period of six months prior to publishing it. An Ad Alert was also issued to all ASA members, requesting them not to accept any advertising of the respondent’s products unless accompanied by confirmation from the ACA Advisory Service that such advertising is acceptable.
SUBSEQUENT TO THESE RULINGS
On 17 September 2013 the complainant lodged a breach allegation against the respondent’s advertising of Magnesium Inflama Spray that appeared in the latest You magazine.
In essence the complainant submitted that false and unsubstantiated claims for the product continued to be made. The complainant requested an Ad Alert be issued against the respondent.
On 26 September, another example of offending advertising was submitted. Again the complainant argued that sanctions are warranted. The example attached was taken from the You Magazine published on 26 September 2013. It too contains claims similar to those previously ruled against.
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.
All reasonable efforts were made to elicit a response from the advertiser, but none was received.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
It should also be noted that the respondent opted to ignore all reasonable requests for a response to the matter. The Directorate therefore had no option but to rule based on the material at hand.
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”.
The essential question before the Directorate is whether or not the respondent’s advertisement is in breach of the original ruling. For this to be the case, the advertisement would have to be the same, or materially similar to the one originally complained of.
A preliminary examination of the respondent’s latest You magazine advertisement suggests that it has persisted in making the same, or substantially similar claims as those previously ruled against. The advertisement still created an overwhelming impression that the product is able to treat or alleviate a host of conditions and ailments. To date, however, the respondent had not submitted any acceptable evidence for such claims.
It is also worth noting that the respondent has not submitted anything to suggest that it has complied with the sanctions of obtaining ACA approval prior to publishing.
As a result, the respondent appeared to have disregarded the previous rulings and has therefore contravened the provisions of Clause 15 of the Procedural Guide.
The breach allegation is upheld.
Given this, the complainant is afforded ten working days from the date of this ruling to comment on whether or not sanctions are warranted and if so, which sanctions. After this period, the respondent will be afforded an equal opportunity.
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