Posted 20 August 2012
This is an old ASA ruling which I somehow missed posting.
Australia’s Competition and Consumer Commission asked the company distributing Power Balance in Australia for evidence to support the claims being made for the product, and if no evidence is available, to refund consumers their money. The manufactures stated: “We admit that there is no credible scientific evidence that supports our claims”.
In South Africa, the response was a little different. Consumers laid a complaint with the South African ASA. The CEO of the local company claimed in a newspaper report and the response to the ASA the following:
|Power Balance SA / Free Society Institute & Others / 17168|
Ruling of the : ASA Directorate
In the matter between:
FREE SOCIETY INSTITUTE OF SOUTH AFRICA JARRAD G WRIGHT MR BARRY GRIESEL MR WADDA LOUW DR RV MILFORD Complainant(s)/Appellant(s)
POWER BALANCE LLC Exclusively distributed in South Africa by SPT Respondent
15 Dec 2011
Consumer complaints were received against internet advertising for the Power Balance bracelets, which the respondent distributes in South Africa.
At the time of complaining, the website http://www.powerbalance.com/southafrica/ contained the following claims:
“WHAT IS POWER BALANCE?
Power Balance is Performance Technology designed to work with your body’s natural energy field. Founded by athletes, Power Balance is a favourite among elite athletes for whom balance, strength and flexibility are important.
HOW DOES THE HOLOGRAM WORK?
Power Balance is based on the idea of optimising the body’s natural energy Flow, similar to concepts behind many Eastern philosophies. The hologram In Power Balance is designed to resonate with and respond to the natural Energy field of the body.”
In addition, the website contains a video that explains how one can test to see the effect of these bracelets.
In essence, the complainants submitted that the claims are misleading and unsubstantiated. The ACC (Australian Competition and Consumer Commission) recently found that consumers confronted with similar advertising for the same product had been misled. It ordered the respondent to publish corrective advertising and to refund purchasers of the product. Now those same unsubstantiated claims are being used to promote the product in South Africa. The claims border on pseudoscience and are designed to create an impression that the product will actually have an effect on one’s performance, balance, strength and flexibility. The manufacturer has, however, openly admitted that no proof of this exists.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
Radue Attorneys, on behalf of the respondent, submitted, inter alia, the following:
The fact that Power Balance utilises the tagline “Performance Technology” does not in the context constitute a promise of anything material. It is akin to saying that a car provides “the ultimate driving pleasure”, and will have different subjective meanings for people. In itself, and in this context, there is nothing to substantiate in terms of this specific terminology.
The website www.powerbalance.com/southafrica/products is hosted in the United States of America with IP address 188.8.131.52. Based on this, the advertising is not the jurisdiction of the Advertising Standards Authority of South Africa.
The athletes and other public figures that wear Power Balance products are generally not under any compulsion to do so. Besides this, Power Balance has never provided the wearing of their products by a recognisable figure as scientific proof of efficacy.
Since Power Balance started in South Africa in September 2009, it has always offered a 30 day money back guarantee to customers who are dissatisfied.
Because efficacy has not been proved does not mean that it has no efficacy or that efficacy cannot be proved at some point in the future.
There is substantial proof of holograms being more than light-reflecting images. It submitted information from rense.com on the subject matter to prove that holograms hold significant properties. Power Balance South Africa does not make the assertion that holograms are embedded with frequencies.
It advised further that the wording of its claims has been revised.
Comments were also made about the approach followed by the complainants. However, as these comments have no significance insofar as the ASA’s ruling is concerned, there is no point in summarising them above.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The respondent questioned whether or not the ASA has jurisdiction over the material at issue.
Clause 4.1 of Section I defines advertising as “any visual or aural communication, representation, reference or notification of any kind … which is intended to promote the sale, leasing or use of any goods or services; or … which appeals for or promotes the support of any cause”. As such, the material objected to clearly fall within the definition.
Secondly, it is clear from the website that the product, the relevant claims, and in fact any information used to purchase the product, are aimed directly at the South African Consumer. (Reference the EASA approach on electronic advertising…). the URL containing these claims clearly contains the word “southafrica”. In addition, the website features the South African flag, list a South African address for correspondence with the distributor, “SPT”, and contains contact details per provincial regions for South African people who act as, inter alia, account managers.
Given the above, the Directorate is satisfied that the advertising objected to indeed falls within the jurisdiction of the ASA, and will therefore be subject to the principles and contained in the Code.
Clause 4.1 of Section II requires advertisers to hold substantiation for all direct or implied claims that are capable of objective verification. It further states that such verification should either emanate from, or at least be verified by an independent and credible expert in the field to which the claims relate. Finally, it is trite that such substantiation should be product-specific.
Clause 4.2.1 of Section II of the Code states, inter alia, that advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, or exaggerated claim, is likely to mislead the consumer about the advertised product.
It stands to reason that, should the claims disputed not be substantiated, they will likely mislead consumers. As such, the main concern before the Directorate is whether or not the respondent holds acceptable substantiation.
The first complainant submitted that the claim “performance technology” implies that the Power Balance has benefits in terms of athletic performance. However, other than this allegation, no motivation as to why people would reach such a conclusion was submitted.
It is trite that claims must be considered in the context that they appear in order to establish what the hypothetical reasonable person’s take out from that claim will be.
The claim “performance technology” is clearly not capable of objective substantiation, and an average, reasonable person would not expect any type of proof of this.
The Directorate therefore does not agree with the complainant that the claim requires substantiation.
In light of the above, the claim is not misleading and not in breach of Clauses 4.1 and 4.2.1 of Section II of the Code.
This aspect of the complaint is dismissed.
Claims relating to energy fields, holograms, strength and flexibility
The Directorate perused the respondent’s website and noted that the claims complained about have been amended as suggested by the respondent.
Initially, the claims mentioned that the Powerband “is designed to work with your body’s natural energy field” and that the hologram is “believed to resonate and work with your body’s natural energy flow to help enable you to perform at the best of your ability.” It also mentioned that tens of thousands of people around the world reported to have experienced “excellent balance, strength and flexibility when wearing the Power Balance bracelet.”
There can be no doubt that such claims create an impression that the product delivered said benefits to these athletes, and will therefore deliver the same to any other user. In addition, the claimed improvement in terms of balance, strength, flexibility and the like are clearly capable of independent verification as envisaged by the Code.
Were it not for the respondent’s undertaking, and indeed actions in amending the claims, the Directorate may well have had no option but to uphold the objections, because none of the material placed before the Directorate qualifies as acceptable substantiation in terms of the Code.
However, given the action of amending the claims, the Directorate has to consider whether the amendments address the concerns raised.
The new claims make no mention of the Powerband working with the body’s natural energy field, nor do they feature any claims relating to balance, strength and flexibility. Furthermore, it does not mention how the embedded hologram works. It merely states that the hologram is a thin polyester film programmed through a proprietary process that mimics Eastern philosophies. Such claims do not create any specific expectation of efficacy.
Similarly, the “POWER BALANCE TEST VIDEO” stops short of making any efficacy claims. It shows three tests that the consumer should be able to conduct on his own. In each instance, the test shows what happens when the test is performed without the product, but not what happens when the test is performed with the product.
The Directorate is satisfied that these amendments address the concerns brought to the ASA, namely that the product is making unsubstantiated efficacy claims, because no efficacy claims are being made any longer. While it appears that the respondent holds no substantiation for any specific efficacy claims, it is also no longer making any such claims. At best the current claims imply that the respondent has a product that is based on the principles of certain philosophies (by implication NOT based on science), nothing more.
As such, the Directorate is satisfied that the respondent’s amendments address the concerns brought before the ASA. The Directorate therefore accepts the respondent’s amendments as an adequate resolution to the current dispute.
It should be noted that the amendments should, in terms of the provisions of Clause 15.5 of the Procedural Guide, be effected to all the respondent’s advertising irrespective of the medium used. The applicable deadlines to ensure such compliance are contained in Clause 15.3 of the Procedural Guide, and will be understood as commencing from the date of this ruling.