Posted 16 July 2012
Rayma Balance Bracelet placed an advert in a newspaper making the same unsubstantiated claims previously ruled against by the ASA. Rayma appears to be deliberately ignoring the ASA’s previous rulings – not surprising considering that the claims being made for this bracelet makes no physiological sense at all. The ASA agreed with a consumer complaint that this was a breach of previous ASA rulings, and ruled against the company with the institution of sanctions but suspended for a period.
| Rayma Balance Bracelet / DL Whitehead / 8621|
Ruling of the : ASA Directorate
In the matter between:
Prof L David Whitehead Complainant(s)/Appellant(s)
Topline Innovations Mail Order cc Respondent
13 Jul 2012
In Rayma Balance Bracelet / D L Whitehead / 8621 (10 May 2012) the Directorate considered a breach allegation from Dr Harris Steinman in relation to the above matter. It ruled, inter alia, that the respondent was in breach of the previous rulings insofar as its print and website advertising was concerned, and therefore contravened Clause 15 of the Procedural Guide.
The advertisement originally ruled against made the following claims:
“PAIN? Guaranteed relief or your money back!”
“Do you suffer from arthritis, trigeminal neuralgia, high blood pressure, poor circulation, rheumatism, headaches, migraine, gout, fibrositis, shoulder stiffness or backache?”
“Rayma Balance Bracelet Natural Pain relief: It’s not Copper; nor is it magnetised”
The ruling also made the point that the respondent had been ruled against, for effectively the same claims, on 8 June 2007, 10 September 2007, and 14 August 2009 (resulting in sanctions being imposed on the respondent on 15 September 2009). In addition, a ruling dated 8 December 2009 rejected the respondent’s attempt to substantiate its claims, and confirmed that the ruling dated 8 June 2007 remained binding and that the respondent was not allowed to use the claims at issue.
Both parties were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted that the harshest sanctions possible to be imposed on the respondent. It was submitted that the reasons for the request was a complete disregard for the ASA’s initial ruling and lack of remorse on the part of the respondent. The complainant suggested a sanction in terms Clause 14.5 of the Procedural Guide.
RESPONDENT’S COMMENTS ON SANCTIONS
The respondent submitted that it had discontinued all advertising for the bracelet and will no longer place any advertisement for the bracelet in the print media. It conceded that the ASA does appear to have jurisdiction over print media. An argument was also made that the Directorate prejudiced its client by obtaining clarity from Beeld newspapers in relation to the advertisement that formed the subject of the breach allegation, instead of accepting the respondent’s argument that it was placed in error.
There is no reason why any sanction should be imposed in respect of that particular advertisement.
Insofar as the ruling relates to its website, it noted that the ASA may have jurisdiction over certain aspects relating to internet advertising. In this regard it will amend its website to remove the claims that are not compliant.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is only tasked with determining whether or not sanctions are appropriate at this stage and which sanction, if any, to impose against the respondent.
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 complainant requested harshest sanction, particularly a sanction in terms of Clause 14.5 of the Procedural Guide. In terms of this sanction, the offending advertiser must publish a summarised version of the ruling as proposed by the ASA, in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ASA, and the cost of such publication will be for the respondent.
The Directorate is mindful of the fact that the respondent has somewhat of a history with the ASA for non-compliance. In addition, the respondent has already been sanctioned in terms of Clause 14.2 of the Procedural Guide (refer the ruling in this matter dated 15 September 2009).
When the Directorate forwarded the breach allegation that gave rise to its most recent ruling to the respondent, the respondent tried to lay the blame with Beeld, arguing that Beeld “… obviously utilised the old advertisement in error …” This was subsequently found to be untrue, as Beeld provided evidence to show that the respondent actually signed off on the advertisement that provoked the breach allegation. In addition, up to that time, the respondent had still been making the same unsubstantiated claims on its website www.painstop.co.za in defiance of all the previous rulings. In fact, at the time of finalising the current ruling, the website still claimed that the product delivers guaranteed pain relief, and that:
“Over 14 million people worldwide have used the award-winning RAYMA® Balance Bracelet to relieve the pain and discomfort associated with arthritis, trigeminal neuralgia, high blood pressure, poor circulation, rheumatism, headaches, migraines, gout, fibrositis, shoulder stiffness and backache”.
To date the respondent has not submitted any acceptable evidence for its claims. It would appear that the sanction previously imposed on the respondent has had little effect on its advertising. This is regrettable, and suggests no immediate intent to comply with the provisions of the Code or the previous rulings.
Ordinarily, a sanction in terms of Clause 14.3 of the Procedural Guide would be appropriate. However, given that the respondent has not had more than one adverse ruling in the past 12 months, the Directorate is precluded from imposing this sanction.
As a result, and given the respondent’s apparent disregard for the provisions of the Code and the implications of previous rulings, the Directorate imposes a sanction on the respondent in terms of Clause 14.5 of the Procedural Guide.
In terms of this sanction, the respondent is ordered to “… publish a summarised version of the ruling as proposed by the ASA, in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ASA, and the cost of such publication will be for the respondent. 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”.
At the discretion of the ASA, this sanction is suspended for a period of 12 months from the date of this ruling.
Should the respondent again be found to have contravened the provisions of the Code or previous rulings within this period, the above sanction will automatically be evoked, along with any additional sanctions the Directorate deems appropriate.
The respondent is again instructed to remove all unsubstantiated efficacy claims from any media in which they may appear.