Simillimum – ASA ruling

Posted 13 December 2012

ASA ruling: “The Directorate believes that such a sanction would provide added safeguards needed to ensure that similar unsubstantiated claims are not again made in a manner that exploits the consumer.  The Directorate therefore imposes a sanction in terms of Clause 14.2 of the Procedural Guide on the respondent.”

Simillimum / K Charleston / 17529
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Dr Francesca Swainston Clinic t/a Simillimum Respondent

11 Dec 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6363

BACKGROUND
In Simillimum / K Charleston / 17529 (11 October 2012), the Directorate ruled, inter alia, that the respondent’s print advertisement was in breach of the previous Directorate ruling of 11 July 2011, as it continued making slimming claims despite its previous undertaking not to continue with such advertising.

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 referred to other flightings of the same or similar advertising, and submitted that it is an outrageous breach of trust when an advertiser merely changes a few words, or language, or merely delays re-publishing the same or similar advertisement despite previous undertakings to stop doing so.

The advertiser appears to have merely switched to a different language, making minor changes to the wording of, inter alia, its website, but in essence still continuing to make similar claims without substantiation in flagrant disregard for the Code of Advertising Practice.

The complainant requested sanction in terms of Clause 14.2 of the Procedural Guide where the advertiser should submit any amendment to the print advertisement or the website to the ACA Advisory Service at the advertiser’s costs.

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.

RESPONDENT’S COMMENTS ON SANCTIONS
The respondent submitted, inter alia, that when the original complaint was made it was not defended, because the advertisement in question was a trial and there were no further plans to run it.

It responded to the complainant’s breach allegation filed in November 2011, clearly substantiating all the statements in the advertisement. As no orders were given subsequent to the defense presented to the ASA, it was understood that the defense had been upheld and the matter had been resolved, and advertising continued.

However, there was an additional complaint made in October 2012, to which it again presented a defense, but the Directorate pointed out that a judgement had already been made without considering the contents of the advertisement and therefore the respondent had to cease advertising regardless of whether the statements in the advertisement are correct or not.

The respondent elaborated on the fact that advertising by its nature has to be booked well in advance, and the fact that these advertisements repeated is not as a result of malice, but because this is how it was booked when the respondent was under the impression that it could continue advertising.

It again argued the merits of its product, explaining that there are many reasons why a person can be overweight and the root of the problem needs to be addressed in order to lose weight.

The website clearly helps the reader make better health choices, providing the reader with a well-rounded viewpoint of why they have put on weight and useful tips on how to remedy their situation. Therefore the first ASA ruling can no longer be applied to the website.

The respondent argued, inter alia, that the question does not appear to be whether or not the contents of the advertisement are wrong, but whether sanctions should be instigated. It is believed that there has been no breach due to the fact that the defense presented in November 2011 was considered successful as no directives to stop advertising were subsequently given. It now appears that there was some misunderstanding regarding this. Therefore, as the advertisement had been changed since the original complaint, the respondent had not contravened the ruling. If the complainant objects to the new advertisement, the respondent believes that it has a right to defend the contents of the advertisement.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

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

At the outset, it needs to be clarified why the apparent “confusion” alluded to by the respondent is little more than a red herring. Subsequent to the original ruling, in which an undertaking was accepted subject to a permanent withdrawal of the advertising, the Directorate received a breach allegation, and forwarded it to the respondent for a reply.

Due to misfiling on the part of the Directorate, this breach allegation was never ruled on, and when the latest breach allegation was received, the Directorate again afforded the respondent an opportunity to reply before finding it in breach.

It is also important to note that the original ruling (dated 1 July 2011) specifically stated:

“The respondent’s attention is, however, expressly drawn to the provisions of Clause 4.1 of Section II insofar as substantiation is concerned, as well as the requirements of Appendix E, which deals with products of this nature to a large extent”.

The requirements of these clauses are pertinently clear, in that efficacy claims in relation to weight loss are subject to unequivocal and independent verification from an expert in the field (Clause 4.1 of Section II), and that certain information and disclaimers are mandatory (Appendix E).

It is also noted that the “defense” submitted by the respondent in reply to the November 2011 allegation amounts to nothing more than a one page document, explaining why the respondent believes its product is effective. Clearly this is not substantiation as required by the Code, and it is disingenuous for the respondent to expect this to suffice, especially as the requirements of the Code were pertinently referred to in the original ruling.

While true that the misfiling of this matter resulted in the breach investigation falling by the wayside, the Directorate does not agree that this automatically entitles the respondent to assume that its “evidence” had been accepted.

The breach ruling (dated 11 October 2012) again specifically states:

“In the initial ruling, the respondent’s attention was expressly drawn to the provisions of Clause 4.1 of Section II insofar as substantiation is concerned, as well as the requirements of Appendix E, which deals with products of this nature to a large extent. The respondent has never presented any evidence of efficacy as required by Clause 4.1 of Section II of the Code, and was therefore still bound by the original ruling”.

It adds that the respondent is found to have breached the original ruling because it “… effectively continued to make the same claims as before despite its undertaking to stop …”

The Directorate is therefore satisfied that as matters stand, the respondent has been adequately informed of the nature and standing of this dispute. This means that at present, 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 should be noted that the respondent did not address the complainant’s comments on sanctions, particularly the request for sanction to be imposed in terms of Clause 14.2 of the Procedural Guide.

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 a sanction in terms of Clause 14.2 of the Procedural Guide. In terms of this sanction, the offending advertiser must submit the proposed amendment, original advertisement and the relevant ASA ruling to the ACA Advisory Service for pre-publication advice. This sanction also serves the purpose of educating an advertiser about the requirements of the Code with an aim to prevent further adverse rulings. Although there are minor costs involved in such a once-off sanction, it cannot be seen as a punitive sanction that would harm the respondent’s business. If anything, it provides additional clarity, a learning experience, and hopefully prevents further offending advertising, which would benefit the respondent as well as consumers.

The Directorate believes that such a sanction would provide added safeguards needed to ensure that similar unsubstantiated claims are not again made in a manner that exploits the consumer.

The Directorate therefore imposes a sanction in terms of Clause 14.2 of the Procedural Guide on the respondent.

In terms of this sanction, the respondent is ordered to submit the proposed amendment, original advertisement and the relevant ASA rulings to the ACA Advisory Service for pre-publication advice. This is a once off pre-publication advice.

An Ad Alert will also be issued to members informing them of this sanction, and requesting them not to accept the next version of advertising from the respondent unless accompanied by written confirmation from the ACA that such advertising may be accepted. This is a once-off sanction.

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