Posted 12 June 2012
A complaint was laid with the ASA that Siberian Pine Nut Oil was still making misleading claims on their Website. The ASA investigated and found that this was not deliberate and the company amended their website as required by the initial ASA ruling and the subsequent breach ruling.
| Siberian Pine Nut Oil / K Charleston / 17527|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
The Other Option Alternative Health Trading cc t/a The Other Option Respondent
07 Jun 2012
In Siberian Pine Nut Oil / K Charleston / 17527 (4 April 2012) the Directorate ruled, inter alia, that the respondent was in breach of the Directorate’s original ruling dated 4 November 2011, due to the fact that the claims ruled against were still appearing on the respondent’s website after the ruling. The ruling pertained, inter alia, to claims of being “… an effective treatment of Acid Reflux, Barrett’s Oesophagus, Bloating, Blood Sugar Levels, Cholesterol Levels, Decreased Immunity, Gas, Gastritis, GERD, H Pylori, Hypertension, IBS, Low Energy, Peptic Gastric & Duodenal Ulcers, Ulcerative Colitis, Weight Loss”. The respondent, however, was unable to substantiate these claims.
The complainant who instituted the breach allegation (Prof Jobson) and the respondent 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 above, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
The Directorate did not receive a response from Prof Jobson in this regard, and no sanctions were suggested by him.
RESPONDENT’S COMMENTS ON SANCTIONS
Stefan Vos Marketing Regulation Advisers (SVMRA), on behalf of the respondent, submitted, inter alia, that it had pro-actively followed up on the sanctions issue when no comments were received from Prof Jobson. This is indicative of its intention to co-operation and comply.
While true that the breach occurred as a result of website material, this was not done to intentionally disregard the first ruling, but rather on the advice from the respondent’s attorneys at the time, who advised that the ASA’s jurisdiction does not extend to websites. Upon consultation with SVMRA, it learnt that websites do fall within the definition of “advertising” in terms of the Code. On the strength of this advice the respondent immediately started amending its website.
In light of the uncertainty over which exact claims required withdrawal in terms of the ruling, an opinion from the ACA Advisory Service was sought on whether or not the amendments are in compliance. From the opinion received (which the respondent attached) it appears that the amendments are acceptable.
It added that all other advertising, including but not limited to print advertising, radio advertising and leaflets, were immediately withdrawn upon receipt of the original ruling. It intends to comply with the rulings of the ASA, and is not willfully or intentionally disregarding the rulings of the ASA.
The respondent submitted that sanctions are not called for, especially taking into account the respondent’s self-imposed sanction in terms of Clause 14.2 of the Procedural Guide.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation as submitted by the 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. It is therefore not a point of contention at this time whether or not the proposed amendment is adequate.
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 respondent submitted that it did not in any way intentionally disregard the first ruling. It submitted a letter from the its attorneys at the time (Hahn & Hahn Attorneys), which confirmed that they advised the respondent that the ASA’s jurisdiction does not extend to websites. This appears to illustrate that the respondent’s actions were as a result of incorrect advice, rather than malice.
It is interesting to note that in Dura Paints CC / Vitax Limited / 16782 (rulings dated 11 August 2011, 30 June 2011, 24 February 2011 and 12 January 2011) the same attorneys represented another respondent in a matter that involved website advertising, yet no concerns over the ASA’s jurisdiction were raised. The Directorate will, however, for the sake of this ruling accept that the respondent was acting on instructions, and not actively seeking to circumvent the relevant rulings.
An investigation as to the number of rulings made against the respondent within the last 12 months reveals that the respondent had one ruling where it was in contravention of the Code (Siberian Pine Nut Oil / K Charleston / 17527 (4 November 2011)). Other than this, there was one incident of breach (the ruling dated 4 April 2012) ultimately resulting in this consideration of sanctions. This does not appear at first glance to suggest habitual offender behaviour.
It is also worth noting that the respondent proactively approached the ACA (much like a sanction in terms of Clause 14.2 of the Procedural Guide would require). Again, this contradicts an impression of deliberate and flagrant disregard for the Code. It is encouraging to see such actions from the respondent.
Given the above, the Directorate sees no need to impose any additional sanctions on the respondent at this time, provided that the original claim is not used again in its original format as per the previous rulings.