Nu Slim ASA breach ruling

On 16 March 2011, "the Directorate accepted the respondent’s voluntary undertaking to remove, from its website www.nuslim.co.za, the efficacy claims, references to testimonials and ingredient specific substantiation as was identified by the complainant. This undertaking was accepted on condition that the claims and references referred to were removed within the deadline stipulated in Clause 15.3 of the procedural Guide."

"On 12 April 2011, the complainant lodged a breach allegation against the respondent’s website www.nuslim.co.za. It was, inter alia, submitted that the respondent continued to make claims for weight loss.

Nu Slim / HA Steinman / 17045 

Ruling of the : ASA Directorate

In the matter between:

Dr Harris Steinman Complainant(s)/Appellant(s)

Nu Slim (Pty) Ltd Respondent

03 Jun 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5592

BACKGROUND

In Nu Slim / H Steinman / 17045 (16 March 2011) the Directorate accepted the respondent’s voluntary undertaking to remove, from its website www.nuslim.co.za, the efficacy claims, references to testimonials and ingredient specific substantiation as was identified by the complainant. This undertaking was accepted on condition that the claims and references referred to were removed within the deadline stipulated in Clause 15.3 of the procedural Guide. 

The Directorate specifically pointed out that the claims highlighted by the complainant as problematic were the following: 

“Well done to all our customers in the Nu Slim family that achieved exceptional results during the past 36 months. Testimonials are pouring in with amazing success rate.” 

“Nu Slim IS STILL and WILL STAY the safest way to lose weight in South Africa!” 

“Through determination, hard work and dedicated Marius has created a product that will change the life of many South African’s whereas their wellness, well-being, health and sustenance of life in general.” 

“References under the heading “Medical Information” which claimed that the product’s “Pharmacological classification” was “A34” and that it’s “Pharmacological action” was “Food Supplement Action”. 

The Directorate also ruled that, due to lack of substantiation for weight loss efficacy, that the product name “Nu Slim” was unsubstantiated and misleading and had to be withdrawn. 

SUBSEQUENT TO THE RULING

On 12 April 2011, the complainant lodged a breach allegation against the respondent’s website www.nuslim.co.za. It was, inter alia, submitted that the respondent continued to make claims for weight loss. 

The complainant added that the website appears to be completely unchanged, making the same claims, either directly or inferred, for weight loss. He added that the word, “slim” is still being used in the product name, contrary to the previous ruling. 

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. 

RESPONSE

The Directorate forwarded the breach allegation to the respondent’s Attorneys Moki, Van Huyssteen & Botes and as well as its Marketing Manager, Ms Helene Leonard, for a response. On 15 April 2011 the Directorate received a letter from the Attorneys requesting an extension to 11 May 2011 to file its response. The reason advanced for needing extra time was that the respondent “… ha[s] instructed Counsel to provide us with an opinion herein, and [that] he has informed us that he will only be available to assist us during the first week of May 2011”. 

In terms of the conditions stipulated in Clause 8.2.2.5 of the Procedural Guide, the Directorate granted the extension. 

On 13 May 2011, a subsequent letter was again sent to the respondent’s attorneys and its Marketing Manager, advising it that the Directorate had not received a response, and would proceed to rule based on the information at hand. No response to this was received. 

ASA DIRECTORATE RULING

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

In the absence of a response from the respondent, the Directorate had no other option but to consider the breach allegation based on the information it had at its disposal. 

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”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies. 

The complainant alleged that the respondent’s website still contained offending claims ruled against in the Directorate previous ruling. 

A preliminary search into the respondent’s website revealed that the following claims were removed from the website. It also deserves mention that the complainant made no mention of where (if at all) these claims appear: 

“Well done to all our customers in the Nu Slim family that achieved exceptional results during the past 36 months. Testimonials are pouring in with amazing success rate.” 

“Nu Slim IS STILL and WILL STAY the safest way to lose weight in South Africa!” 

“Through determination, hard work and dedicated Marius has created a product that will change the life of many South African’s whereas their wellness, well-being, health and sustenance of life in general.” 

The breach allegation is therefore dismissed insofar as these claims are concerned. 

However, the product name, “Nu Slim” still appears on the website with significant prominence. As pointed out in the original ruling, the name implies weight loss properties, which the respondent has failed to substantiate. 

Given the above, it is clear that the respondent has not complied with the Directorate ruling dated 16 March 2011 insofar as the product name is concerned, and is therefore in breach of Clause 15 of the Procedural Guide. 

Similarly, the respondent still claims that the product’s “Pharmacological classification” is “A34” and that it’s “Pharmacological action” is “Food Supplement Action”. This appears to contravene the respondent’s earlier accepted undertaking to remove, inter alia, this claim. 

In light of this, the respondent is also in breach of the previous ruling insofar as its “Medical Information” and “Pharmacological classification / action” is concerned. This is therefore also a breach of Clause 15.3 of the Procedural Guide. 

The Directorate does not, however, believe sanctions are appropriate at this time, as the respondent does not, at this time, appear to be a habitual offender. Other than still using the product name and failing to remove the references to its pharmacological classification and action, the respondent appears to have complied with the previous ruling. 

The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide. This ruling may also be taken into consideration at such a time. 

The respondent is again instructed to permanently remove reference to “Nu Slim” from its advertising, as well as the references to the products pharmacological classification and action, with immediate effect. 

The breach allegation is upheld.

One Response to Nu Slim ASA breach ruling

  1. Kevin Charleston 6 June, 2011 at 7:28 pm #

    Well done for persisting, but wow, how many times does this have to go round?  What does it take to get sanctions imposed?  

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