Posted 05 February 2015
|Marcelle du Plessis, the owner of Miracle Magnesium, shows no remorse and continues to scam consumers by making claims for her products.|
In spite of ASA rulings, which restricts magazines and newspapers from accepting adverts for her products, she manages to convince these publishers to accept her advertisements. In this complaint, the argument was made that newspapers were accepting her advertising, and that this was a breach of the previous rulings.
The ASA agreed, and have instituted sanctions asking all media to not accept any advertising for ANY of her products, and not only those in breach of a previous ruling.
30 January 2015
BACKGROUND AND HISTORY
In a ruling dated 30 July 2012, the Directorate ruled that the respondent had inadequate substantiation for its efficacy claims pertaining to its Miracle Magnesium product/s which were purported to treat, inter alia, pain, inflammation, arthritis, allergies, insect bites and a host of other symptoms, ailments or conditions. The respondent was instructed to withdraw its advertising.
Since then there have been several rulings made against the respondent’s advertising, pertaining mostly to either a lack of substantiation for efficacy claims, lack of proof of alleged testimonials, or failure to comply with existing ASA rulings.
More recently, the respondent was sanctioned to mandatory pre-clearance of its advertising, and to publish a summarised version of the Directorate ruling in one newspaper and two magazines that carried the respondent’s advertisements (refer Magnesium Inflama Spray / HA Steinman / 19028 (4 June 2013) and Miracle Magnesium / R Jobson / 21307 (30 April 2014) for particulars).
In a ruling dated 21 November 2014, the Directorate again found the respondent in breach of its initial ruling on the basis that the advertising still creates an overwhelming impression that the product was able to treat or alleviate a host of conditions and ailments despite the fact that no evidence of efficacy had been provided. The breach was brought to the Directorate’s attention by the original complainant, Dr Steinman and Prof Roy Jobson.
The parties were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
COMPLAINANTS’ COMMENTS ON SANCTIONS
Both complainants were given 10 working days to comment on the issue of sanctions, but failed to do so. Prof Jobson advised that he would prefer for the Directorate to exercise its discretion in this regard.
The respondent was also given an opportunity to comment. All reasonable efforts were made to elicit a response from the advertiser, but none was received.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the above, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In considering sanctions, the Directorate takes into account several factors: most notably the nature of the contravention, any history the respondent has with the ASA as well as possible harm done to consumers or competitors as a result of non-compliance.
The submissions before the Directorate, particularly the absolute lack of any response or indication of an intention to comply from the respondent, suggest that there is no likelihood that the ruling will be complied with.
In addition, the fact that the respondent appears to be promoting a product for conditions ranging from neck pain and gout to asthma and osteoporosis without a shred of credible evidence of efficacy, the Directorate is satisfied that the respondent is likely to bring advertising as a service to the public into disrepute, and undermine consumer confidence in advertising as a whole.
The Directorate is therefore satisfied that sanctions are in order. Unfortunately, previous sanctions have proved unsuccessful in rectifying the respondent’s improper behaviour, which convinces the Directorate that more sever action is warranted in order to protect consumers.
Clause 15.4 of the Procedural Guide states “Should the respondent ignore a reasonable request for co-operation, the ASA will issue an Ad Alert to its members (including newspapers, magazines, radio, television and the Printing Industries Federation)”.
Similarly, the initial correspondence sent to the respondent when the Directorate first started investigating such complaints stated “Kindly note that should an adverse ruling be made, the ASA may issue an Ad-Alert to its members (including newspapers, magazines, radio, television, cinema and the Printing Industries Federation) to request them not to accept the advertising at issue”.
The previous sanctions imposed (pre-clearance and a summarised ruling) are regarded as severe sanctions, which are generally reserved for calculated and deliberate breaches of the ASA Code. The sanction detailed in Clause 14.5 of the Procedural Guide (as imposed on 30 April 2014) involves the publication of a summarised version of the ruling in all, or some of the media in which the advertising at issue appeared. This sanction pertinently states that “Where the respondent refuses to pay for the costs of the publication of the summarised version of the ASA’s ruling, the ASA may order the withdrawal of all advertising space in respect of the respondent, until such time as these costs have been paid”.
There has been nothing placed before the Directorate to show that the respondent has complied with the sanction as imposed in Miracle Magnesium / R Jobson / 21307 (30 April 2014). In fact, rather than amending its advertising to ensure compliance, or at least publishing the summarised rulings as instructed, the respondent has ex facie continued to abuse consumer trust and exploit consumer confidence by simply persisting with unsubstantiated efficacy claims.
In light of the above, and given the respondent’s apparent disregard for the previous rulings and the requirements for proper substantiation as per the Code, the Directorate is satisfied that the provisions of Clause 15.4 of the Procedural Guide have been met, as the respondent is clearly “… ignor[ing] a reasonable request for cooperation …”
Accordingly, the Directorate will issue an Ad Alert to all its members, instructing them to refuse ANY advertising from the respondent for ANY of its products.