Posted: 23 June 2012
A consumer lodged a breach complaint against Patrick Holford’s website submitting, inter alia, that the Patrick Holford continued to make similar claims or convey similar sentiments by claiming that “MOOD FOOD provides a combination of amino acids, plant extracts, vitamins and minerals that help to support mood and mental well-being”, and that this was a breach of the previous ASA ruling. The ASA agreed.
| Mood Food / HA Steinman / 17957|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
More To Life (Pty) Ltd Respondent
13 Jun 2012
In Mood Food / H A Steinman / 17957 (26 January 2012) the Directorate rejected substantiation for the respondent’s claim that its product “… support[s] mood and mental vitality …”
The respondent was instructed to withdraw its advertising with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use them again in future. Attention was also drawn to the provisions of Clause 15.5 of the Procedural Guide.
SUBSEQUENT TO THIS RULING
On 16 May 2012 Dr Steinman lodged a breach complaint against the respondent’s website at http://holforddirect.co.za/products-and-research-patricks-choice/#mood-food.
The complainant submitted, inter alia, that the respondent continued to make similar claims or convey similar sentiments by claiming as follows on its website:
“MOOD FOOD provides a combination of amino acids, plant extracts, vitamins and minerals that help to support mood and mental well-being.”
“L-tyrosine is needed for healthy brain function. Trimethylglycine helps to promote arterial health in the brain. 5-HTP is a precursor to the neurotransmitter serotonin, which plays an important role in mood.”
“Zinc influences specific receptors in the brain that may help to stabilise mood. Vitamin B12 and folic acid help to maintain brain cell integrity and nerve cell function. Chromium helps to balance blood sugar levels to help balance mood and mental energy.”
The complainant argued that this is a breach of 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.
Stefan Vos Marketing Regulation Advisors (SVMRA), on behalf of the respondents, submitted, inter alia, that it was instructed to withdraw the claim that this product will “… support mood and mental vitality …” from its advertising material. The radio commercial, against which the complaint was lodged at the time, was immediately withdrawn upon receipt of the ASA Directorate ruling. In addition, the claim was removed on the day of receipt of the ruling from all other advertising material, including the following website locations:
• http://holforddirect.co.za/products-and-research/#mood-food and
It added that the specific section where the complainant has now located these claims appears as a pop-up when browsing the website, which was overlooked in error. It has, since receiving the breach allegation, removed the relevant claims. It is therefore clear that the section picked-up by the complainant was left unattended as a result of a genuine, bona fide error, and that the respondents’ intention were, and remain, to comply with the ruling in question.
Arguments were also made as to why the claims that gave rise to the breach allegation are different to the original claim.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the complainant.
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 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 respondent would have to be making the same, or materially similar claims to those originally complained of. In this instance, the above question needs to be answered in relation to the efficacy of the product.
Despite arguing that the interpretation of the “new” claims could be different, the respondent appears to accept that there is merit in the complainant’s allegation and has removed the claims, explaining that they remained on display as a result of a genuine, bona fide error.
It is noted, however, that the breach does not appear to be a flagrant and callous disregard of the spirit and letter of the ASA Code in a manner that is likely to bring advertising into disrepute, and that the offending advertising material has since been removed.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent other than the immediate withdrawal of the offending material in accordance with the Code.