Posted 20 May 2014
Arcadia Home Shopping continued to make unsubstantiated claims for its product, Reduline 36. A consumer reported to the ASA that these unsupported claims were still being made, and the ASA agreed that this was contrary to the ASA code, and upheld the breach complaint.
12 May 2014
In Arcadia Home Shopping “Reduline 36” / K Charleston / 22018 (3 September 2013), the Directorate partially upheld a consumer complaint against the respondent’s print advertisement, which appeared in the Sunday Times during March 2013. The Directorate ruled, inter alia, that the sweeping, unqualified, and general claim of being “… safe to use …” was currently unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
The Directorate was also not satisfied that the respondent had submitted adequate substantiation to show that its product, when bought and consumed at the recommended dose, would deliver on the efficacy claims. The respondent’s advertisement was therefore found to be in contravention of Clause 4.1 of Section II of the Code.
The respondent was instructed to withdraw its advertisement with immediate effect and refrain from using it again in its current format in future.
The advertisement at the time promoted the respondent’s “Reduline 36 LIPO-SCULPTURE CAPSULES AND DIET PLAN” as the solution to making “… all the flab around your ‘problem zones’ disappear without expensive or extensive interventions …”
Some of the claims objected to by the complainant were:
“Reduline36 capsules, used in combination with the Reduline36 kilojoule restricted diet plan, forces the fat cells in your body to literally starve”.
“The active ingredient in the Reduline36 capsules is a natural dietary fibre. Its particularly high fat absorbing capacity helps to neutralize calories from fatty foods. The natural dietary fibre forms a gel substance in the stomach, which combines with the food eaten. There the fat is absorbed and turned into an insoluble substance. These tied fats are not used in the metabolic process, but rather leave the body undigested”.
On 24 January 2014 the respondent’s new advertisement was found in breach of the original ruling, because it continued making weight loss claims without any evidence of efficacy having been submitted. No sanctions were, however, imposed.
SUBSEQUENT TO THE BREACH RULING OF 24 JANUARY 2014
In an email addressed to the ASA on 2 March 2014, the complainant lodged another breach allegation against the respondent’s online advertising appearing on its Facebook page and website. The complainant argued all original efficacy claims are still being made on the website, and that sanctions are clearly warranted. In support of its argument, printed and dated copies of the respondent’s website at www.arcadia.co.za/shop/reduline36/ were submitted.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted out that it gave the instructions to its marketing department to withdraw the relevant online advertising, which was done within the required timeframe.
It specifically referred to the dates printed on the copies of its website as submitted by the complainant, pointing out that these were dated 3 February 2014. This is a mere five working days after the Directorate’s 24 January 2014 ruling, and well within the two weeks provided for in terms of the Code.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
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. A key consideration in such matters is what action the respondent took to ensure compliance.
It should be noted that the point of reference for determining compliance should be the first instance where the respondent was informed that its weight loss claims were unsubstantiated. This was done in the ruling dated 3 September 2013, meaning that the respondent’s online advertising should have been amended to comply as far back as 17 September 2013.
The subsequent ruling of 24 January 2014 related to a somewhat amended print advertisement, which was held to be in breach of the original ruling. While it is correct that the most recent breach allegation relied on images taken a mere five days later, the fact remains that at this time, the respondent’s website advertising should already have been compliant with the original ruling. Clause 15.5 of the Procedural Guide makes it clear that “offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium”.
There is nothing before the Directorate to explain why the respondent’s website was not compliant, and the respondent was unable to produce any evidence to suggest that efforts to amend its website were made prior to 17 September 2014.
Accordingly, the submissions at hand suggest that the respondent has failed to comply with the deadlines for withdrawal insofar as its online advertising is concerned.
The respondent is therefore found to have contravened the provisions of Clause 15 of the Procedural Guide, and is therefore found to have breached the original ruling dated 3 September 2013.
Given that this is the second time that the respondent has been found to be in breach of the original ruling, the Directorate is affording the complainant ten working days from the date of this ruling to comment on whether or not sanctions are called for in terms of Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity, after which the Directorate will consider the issue of sanctions.
The breach allegation is upheld.