Magnesium Inflama Spray – ASA breach ruling

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Posted 10 June 2013

Platinum Lifestyle Products selling Magnesium Inflama Spray continues to scam consumers by making false claims for their products. In this instance, a further complaint was laid with the ASA. The ASA concluded that:

Given the Platinum Lifestyle Products’s / Magnesium Inflama Spray’s apparent disregard for the previous rulings and the requirements for proper substantiation as per the Code, the Directorate imposes a sanction on the Platinum Lifestyle Products / Magnesium Inflama Spray.

Platinum Lifestyle Products / Magnesium Inflama Spray is ordered to submit any and all advertising for any of its products to the ACA Advisory Service for pre-publication advice. Only advertising that has been pre-approved by the ACA may be accepted by media owners.

An Ad Alert to this effect will be issued to all ASA members, requesting them not to accept any advertising for any of  Platinum Lifestyle Products / Magnesium Inflama Spray’s products unless accompanied by confirmation from the ACA Advisory Services that such advertising is acceptable. 

Magnesium Inflama Spray / HA Steinman / 19028
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Platinum Lifestyle Products cc Respondent

04 Jun 2013

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6576

BACKGROUND
In Magnesium Inflama Spray / H Steinman / 19028 (14 March 2013) the Directorate found the respondent in breach of its initial ruling on the basis that the advertising still create 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 and a second breach allegation by 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
The original complainant did not comment on the issue of sanctions. The other complainant to bring the breach to the attention of the ASA (Prof Roy Jobson) suggested that the following sanctions be considered:

Clause 14.1 order the withdrawal of an advertisement in its current format from all media in which it appears, including leaflets, posters and brochures;

Clause 14.2 direct the advertiser, when the ASA has found that an advertisement is in breach of the Code, to submit the proposed amendment, original advertisement and relevant ASA ruling to the ACA Advisory Service for prepublication advice as it appears from the total lack of communication and response from the respondent that it is in great need of assistance and education about advertising, advertising ethics and the ASAs Code of Advertising Practice.

He also noted that Clause 14.9 of the Procedural Guide deals with “Advertising undermining ASA sanctions”. He argued that the effect of the respondent’s refusal to adhere to the original ruling and failing to communicate with the ASA has been to undermine not only the ruling, but the Code itself and has brought the very self-regulatory foundations of the Code into question.

RESPONSE
All reasonable efforts were again 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 is likely to bring advertising as a service to the public in disrepute, and undermine consumer confidence in advertising as a whole.

The Directorate is therefore satisfied that sanctions are in order, particularly a sanction that would ensure that no improper advertising is placed and educate the respondent on what would be acceptable.

The respondent was initially ruled against in July 2012, and was found in breach in March 2013. This means that a sanction in terms of Clause 14.3 of the Procedural Guide (preclearance for a pre-determined period) could apply. Despite being afforded to address the Directorate on the issue of sanctions, the respondent opted not to. The requirements of Clause 14.3 of the Procedural Guide have therefore been met.

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 imposes a sanction in terms of Clause 14.3 of the Procedural Guide on the respondent.

In terms of this sanction, the respondent is ordered to submit any and all advertising for any of its products to the ACA Advisory Service for pre-publication advice. Only advertising that has been pre-approved by the ACA may be accepted by media owners.

An Ad Alert to this effect will be issued to all ASA members, requesting them not to accept any advertising for any of the respondent’s products unless accompanied by confirmation from the ACA Advisory Services that such advertising is acceptable.

This sanction is imposed for a period of six months from the date of this ruling.

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