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Posted 06 May 2013
A consumer laid a complaint with the ASA against a Herbex advert, raising several issues, relating to the discrepancy between the Afrikaans and English testimonial (which is problematic in terms of the Code), the prominence (or lack thereof) of the relevant disclaimer and approval required by the Code, and the lack of substantiation for efficacy of the product.
The ASA ruled in favour of the consumer in most aspects.
|Herbex Slimmers Drops & Tablets “Rene” / R Jobson / 20036|
Ruling of the : ASA Directorate
In the matter between:
Professor Roy Jobson Complainant(s)/Appellant(s)
Herbex (Pty) Ltd Respondent
23 Apr 2013
Prof Jobson lodged a consumer complaint against the respondent’s commercials published on YouTube during 2012.
The commercial features a testimonial from “René” explaining that Herbex was recommended to her (the Afrikaans version claims a pharmacist recommended it and the English version claims a “Rep” recommended it). She adds that the pharmacist / rep explained that Herbex has no side effects, and details how it assisted her in losing weight.
The complainant raised several issues, relating to the discrepancy between the Afrikaans and English testimonial (which is problematic in terms of the Code), the prominence (or lack thereof) of the relevant disclaimer and approval required by the Code, and the lack of substantiation for efficacy of the product. The relevant details will be dealt with more fully below.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following provisions of the Code as relevant:
Section II, Clause 10 – Testimonial
Appendix E – Advertising for slimming [since lodging the complaint this appendix was moved to Appendix D]
While some mention was made of the complainant’s desire for substantiation, Clause 4.1 of Section II (Substantiation) was never pertinently identified, and the complainant did not motivate on what grounds he believes the claims are unsubstantiated. The Directorate therefore did not consider this complaint in terms of Clause 4.1 of Section II.
The respondent submitted a detailed response, referring back to older rulings that accepted evidence for the efficacy of its Herbex Slimmers formulation. It also submitted a signed copy of “René’s” testimonial, her ID document, marriage certificate as well as a signed declaration that “… everything as stated by me below in writing, as well as in the spoken testimonial given during the filming the [sic] original Herbex television advertisement filmed on the 4th of December 2007 at Cape Town, is true and correct”. The additional relevant portions of the response will be dealt with in more detail below.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
It should be stressed that the Directorate is ONLY tasked with determining whether the commercials at issue are in breach of the provisions of the Code specifically identified by the complainant, namely Clause 10 of Section II (Testimonials) and Appendix D (originally Appendix E). The standing of Dr Sandell and his verification of this (or prior) advertising is therefore not at issue currently.
Recommendation of Herbex
Clause 10 of Section II reads, inter alia, as follows:
“Testimonials should not contain any claims to efficacy which cannot justifiably be attributed to the use of the product, and any specific or measurable results claimed should be fairly presented. Where ‘before’ and ‘after’ claims are made, they should be capable of substantiation, expressed and illustrated in such a way as to permit a fair comparison to be made …
Advertisers and their agencies should hold ready for inspection by the ASA, copies of any testimonials used in advertising. Such copies should be signed and dated by the persons providing the testimonials and should confirm what is said in any advertisement”.
The complainant correctly noted that there is a difference between pharmacist and a “rep”, with the latter not necessarily being trained in pharmacology, but rather acting as a sales agent for certain manufacturers. While this discrepancy would not necessarily mislead consumers, it does speak to the inaccuracy of one of the commercials in a manner that would potentially contravene the provisions of Clause 10 of Section II.
The signed and dated (29 February 2008) testimonial submitted by the respondent refers to “… one day a rep at a local pharmacy told me about Herbex …” No mention is made of a pharmacist. While the respondent pointed to a more recent document, signed in 2011, where “René” declares that “… everything as stated by me below in writing as well as the spoken testimonial given during the filming [of] the original Herbex television advertisement filmed on the 4th of December 2007 … is true and correct”, the “written testimonial” contained within this declaration again makes no mention of a pharmacist. This alone suggests that the Afrikaans version of the commercial is inaccurate.
Perhaps more to the point, however, is the fact that the 2011 testimonial makes it clear that René exercises regularly, and drinks enough water. The commercials make no mention of this. Arguably, this means that the efficacy claims in terms of weight loss are not solely attributed to the respondent’s product, which in turn casts doubt over whether or not the effects are “justifiably” attributed to the product.
This appears to render both the Afrikaans and English commercials in contravention of the provisions of Clause 10 of Section II.
Clause 2.3.1 of Appendix D (originally Appendix E) states, inter alia, as follows:
“… appetite depressants, may not be advertised except in terms which make clear they can only be effective when taken in conjunction with or as part of a kilojoule-controlled diet. Due prominence should be given, therefore, in all advertisements to the part played by the diet”.
In Bioslim Fat Attack / Dr HA Steinman / 4740 (20 June 2006), as cross-referenced with Bioslim / Dr S Goldstein / 1122 (10 March 2005) and Perc Slimming / Dr H Steinman / 1679 (14 January 2005) as well as Perc Slimming / Dr H Steinman / 1679 (10 March 2005), the Directorate pointed out that when weight loss claims are claimed to be true on the basis that the product is used in conjunction with a kilojoule restricted eating plan and exercise (as appears to be the case here) the claims must appear in conjunction with such a notice (also refer Bioslim Meal Replacement / J Gardener / 4531 (17 March 2006) and Bioslim Once a Day / Gardener / 589 (8 March 2005) for additional explanation of why the disclaimer needs to appear whenever efficacy claims of this nature are made).
The English commercial carries a disclaimer that “HERBEX PRODUCTS WORK IN SUPPORT OF A HEALTHY EATING AND EXERISE PROGRAMME”. This appears for approximately four seconds at the end of a 31 second commercial. Furthermore, at the time this appears on-screen, there is also a large heading reading “now available at supermarkets, pharmacies, clicks & dis-chem or visit www.herbexhealth.com” along with an image of the product in its packaging and the respondent’s logo. The same applies to the Afrikaans version, albeit with an Afrikaans disclaimer.
The Directorate is not convinced that a hypothetical reasonable person would notice or properly comprehend the disclaimer relied on by the respondent. In addition to this, the Code requires this type of disclaimer to make it clear that the product is ONLY effective when taken in conjunction with or as part of a kilojoule controlled diet. The respondent’s disclaimer suggests that this product supports (augments or works synergistically with) a healthy eating and exercise programme, which is dissimilar to a suggestion that the product’s efficacy is dependent on exercise and healthy eating.
Accordingly, both commercials are in contravention of Clause 2.3.1 of Appendix D (originally Appendix E) of the Code.
The respondent is therefore required to:
Withdraw the commercials in their current format and context
Immediately action the withdrawal of these commercials upon receipt of this ruling,
Ensure complete withdrawal of the commercials within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and
Refrain from using these commercials in their current format and context.
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