Rayma Balance Bracelet scam – ASA breach ruling

Posted 10 May 2012

In a ruling dated 8 June 2007, the Directorate ruled that the respondent’s advertising for Rayma Balance Bracelet created a misleading impression that the bracelet will relieve pain when used by anybody, which was not proven and therefore unsubstantiated.

However this appears to have made no impression on Mr Mervyn Daitz of Topline Innovations who continued to make these nonsense claims, and deceive, cheat and steal from consumers by selling this simple scam. More than that, read the ruling carefully – the ASA appear to call Mr Daitz a liar, but not in so many words. If you are a consumer who purchased this product, I urge you to ask for your money back. If you do not get it, ask the small claims court for redress, or the CPA, or even lay a charge of fraud against the company.

  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

10 May 2012

In a ruling dated 8 June 2007, the Directorate ruled that the respondent’s advertising for Rayma Balance Bracelet created a misleading impression that the bracelet will relieve pain when used by anybody, which was not proven and therefore unsubstantiated.

The advertisement 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?”

“Amazing Results”

“Rayma Balance Bracelet Natural Pain relief: It’s not Copper; nor is it magnetised”

The respondent was instructed to remove the offending claims within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

On 10 September 2007, the respondent was found in breach of the above ruling, but no sanctions were imposed at that time.

On 14 August 2009 the respondent was again found to be in breach of 8 June 2007 Directorate ruling. Both the complainant to the breach complaint and the respondent were given an opportunity to comment on whether or not sanctions were appropriate, and if so, which sanction.

On 15 September 2009 the Directorate imposed a sanction in terms of Clause 14.2 of the Procedural Guide in which the respondent was ordered to submit the proposed amendment, original advertisement and all previous ASA rulings to the ACA Advisory Service for pre-publication advice. It was a once-off pre-clearance.

An Ad Alert was issued to the ASA members not to accept any Rayma Balance Bracelet advertising unless it is accompanied by confirmation from the ACA Advisory Services that it may be placed.

On 8 December 2009 the Directorate rejected the respondent’s new substantiation on the basis that the documentary submissions were not relevant to the claims and therefore not an unequivocal verification of the claims in question. The Directorate pointed out that the ruling of 8 June 2007 remained binding and the respondent may not use the claims in question.

In a letter dated 14 March 2012, a complainant not party to the original dispute, Dr Steinman, lodged a breach complaint regarding the respondent’s print advertisement for Rayma Balance Bracelet that appeared in the Beeld newspaper as well as the advertising appearing on the respondent’s website

In essence, the breach allegation submitted that the newspaper advertisement again claims to offer relief from, inter alia, pain, arthritis, trigeminal neuralgia, high blood pressure, poor circulation, rheumatism, headaches, migraine, gout, fibrositis, shoulder stiffness and backache. These are the very claims previously ruled against.

The copy of the advertisement asks (in Afrikaans) whether the reader is suffering from pain, or the above-mentioned conditions, and then presents the bracelet as the solution.

In addition, the breach allegation argued that the respondent’s website (which carries very much the same claims) is also in breach of the original rulings, warranting the severest sanctions to be instituted, as well as an Ad Alert.

In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

Mr Mervyn Daitz of Topline Innovations initially responded and expressed his surprise to receive a letter from the ASA. It was further alleged that Beeld placed the incorrect advertisement in error.

When the Directorate (at its discretion) afforded the respondent opportunity to address the merits insofar as its website was concerned, attorneys J H Nicolson Stiller & Geshen, on behalf of the respondent, questioned the ASA’s jurisdiction in respect to website material, arguing that the Code expects members to comply, and it was not a member. It added that it does not view the website as “advertising” as contemplated in the Code.

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

It cannot be disputed that the ASA is only empowered to consider and rule on allegations that any disputed advertising contravenes the provisions of the Code of Advertising Practice. This is echoed not only in various rulings over the years, but also in the Code itself.

Clause 2.1 of Section I states, inter alia, that “The primary objective of this Code is the regulation of commercial advertising. It applies therefore (except as expressly provided further on) to all advertisements for the supply of goods or services or the provision of facilities by way of trade …”

In Pretoria Civil Action & Another / City of Tshwane Metropolitan Municipality (15 November 2005), the Final Appeal Committee (the FAC) also emphasised the fact that the ASA is obliged to and entitled to rule on advertising complained of even if the advertiser does not concede to the ASA’s jurisdiction. It held:

“Even if the appellant had not appeared, after giving it an opportunity to do so, the ASA, at the request of a consumer, with due notice to the appellant could make a ruling binding on its members. The members in adhering to the ASA’s ruling would not be violating any protectable legal right of the appellant and would not commit an unlawful act. Nor would the ASA be doing so in making the ruling and nor would the consumer in asking for such a ruling. Vide Tothill vs. Gordon, 1930 WLD 99 and the ruling of this committee in National Brands Limited vs. Kwality Biscuits (Pty) Ltd”.

While the respondent may, or may not, have advertising agents that belong to a constituent member of the ASA, it may well choose to utilise a member of the ASA to carry its advertising (and has in fact done so when advertising in Beeld newspaper, as the original complaint also related to a newspaper advertisement (Cape Times on 14 February 2007)). If this were to happen, such members, and indirectly, the respondent, would be bound by all relevant rulings. It is also clear that the ASA is required to consider all “valid” complaints. The complaint currently at issue complied with the provisions of the Code and is therefore regarded as valid.

In addition, the ASA has often ruled on advertising content on websites. While true that not everything that appears on a website falls within the definition of an “advertisement” as contained in the Code, material that is clearly intended to persuade the reader to purchase a specific product or service, or support a particular cause may well be (refer Standard Bank Internet Banking / M Lurie / 19468 (16 March 2012) and SAA Airport Taxes / B Phillips / 7144 (15 November 2006) for examples).

The respondent’s website is phrased and presented in a manner similar to the advertisement in Beeld. In addition to presenting the novelty of the product, its claimed uses and various testimonials, readers are able encouraged to “Order Now”.

The respondent’s argument that it is not subject to the ASA’s jurisdiction is therefore rejected, and the Directorate is satisfied that it is entitled to consider both print and online material in dealing with the breach allegation.

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”. In addition, Clause 15.5 of the Procedural Guide specifically requires offending advertising to be removed from any media where it appears.

The essential question before the Directorate is whether or not the respondent’s internet and print advertisements are 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 against.

There can be no argument that the website is making the same claims as previously ruled against. The website states, inter alia, as follows:

“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.

Unlike most conventional pain relief options that carry the risk of side-effects and limit dosage, the RAYMA® Balance Bracelet is drug-free, has no side-effects, and will keep working as long as you wear it. Whats more, the results are often even more dramatic and longer-lasting than many conventional pain relief remedies. A significant improvement is normally felt within the first 12 hours of wearing the bracelet and, whereas other remedies will wear off, the RAYMA®. Balance Bracelet provides relief from pain, stiffness and discomfort in the long-term”.

Given this, the Directorate is satisfied that the respondent is in breach of the previous rulings insofar as its website advertising is concerned.

This aspect of the breach allegation is upheld.

Insofar as the advertisement in Beeld is concerned, the respondent has alleged that the incorrect advertisement was used by Beeld.

In an effort to obtain clarity on this, the Directorate contacted Beeld to ascertain whether this was indeed the case. According to the Senior Advertising Manager for Beeld confirmed that “… the correct material was used by Beeld”.

The respondent was notified accordingly, and offered an opportunity to comment on the issue. The attorneys acting for the respondent submitted as follows:

“We are instructed that our client submitted the attached ASA approved advert to Media 24 in December 2009 and that Die Beeld used the incorrect advertisement, presumably on account of a misunderstanding”.

The Directorate went back to Beeld in light of this submission. In return, Beeld submitted a signed booking form with the respondent’s account number, contact person and the address. It explained that the respondent instructed it to use an advertisement that appeared in the “My Tyd” insert during January, and to resize it (i.e. copy remained the same). It further submitted that if it had placed the incorrect advertisement the client would have requested a credit or refused to pay the account. No credit was passed on the account and it was paid in full. A copy of the “My Tyd” advertisement was submitted along with this response.

It would appear that, on a balance of probabilities, the respondent has deliberately asked for an advertisement to be placed despite having received adverse rulings (and a sanction) against the claims made in that advertisement.

The Directorate is therefore satisfied that the respondent is in breach of the 8 June 2007, and therefore in contravention of Clause 15 of the Procedural Guide.

Tracing the history of disputes in relation to this specific advertiser, the Directorate notes that the claims currently in use on its website and in the print advertisement that gave rise to the breach allegation are virtually identical. The fact that the respondent has apparently refused to amend its website shows that it has no intention of complying unless forced to do so (as was the case when the pre-clearance sanction was imposed during September 2009).

While not necessarily material, the Directorate also notes that the advertisement that the respondent appears to have placed in the “My Tyd” insert during January 2012 also contains the same claims as previously ruled against.

In light of this, the consumer who brought the breach allegation to the ASA’s attention (Dr Steinman) is afforded ten working days to comment on whether or not sanctions are appropriate at this time, and if so, which sanctions in accordance with Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity to address this issue, following which the Directorate will consider whether or not sanctions are warranted and if so which sanctions in terms of Clause 14 of the Procedural Guide.

The breach allegation is upheld, and the issue of sanctions will be finalised once the parties have had an opportunity to address the Directorate in that regard.

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