"The complainant submitted that no changes have been made to the misleading / false claims on the Simply Slim website, www.simplyslim.co.za, and the respondent clearly has no intention of desisting from duping consumers, because roadside banners between Johannesburg and Pretoria are also still in use, Therefore only the severest level of sanctions may have some effect."
Simply Slim / HA Steinman / 15605
|Ruling of the : ASA Directorate|
|In the matter between:|
|Dr Harris Steinman||Complainant(s)/Appellant(s)|
|Simply Slim (Pty) Ltd||Respondent|
19 Apr 2011
In a ruling issued on 10 February 2011, the Directorate ruled, inter alia, that the respondent was in breach of the Directorate ruling of 6 December 2010, because the respondent was still making the same, and in some instances similar unsubstantiated weight loss claims, and still used the name “Simply Slim” to promote its product, which in itself implied weight loss, which the respondent was unable to substantiate.
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 submitted that no changes have been made to the misleading / false claims on the Simply Slim website, www.simplyslim.co.za, and the respondent clearly has no intention of desisting from duping consumers, because roadside banners between Johannesburg and Pretoria are also still in use, Therefore only the severest level of sanctions may have some effect. As the respondent had previously ran advertisements in all major magazine and newspapers, the complainant recommended full page colour advertisements pointing out that there is no proof that Simply Slim can result in weight-loss.
RESPONDENT’S COMMENTS ON SANCTIONS
The respondent, who’s response was submitted on a Living4Health letterhead, indicated as “Simply Slim (Pty) Ltd t/a Living4Health” submitted that Simply Slim is in the process of being completely withdrawn from the market in South Africa. The company is neither selling, nor manufacturing any additional product which relates to this complaint, and has removed all marketing material under its control from the market place.
It effectively attributes the need to close down to “negative and harmful media reportage presenting unsubstantiated fact”, and what it believes are irregularities in the Medicines Control Council’s instructions to withdraw this product from the market in 2010. The respondent claims that these factors have done irreparable damage to the brand equity of Simply Slim and the morale of its employees.
Since it is no longer trading and will no longer be advertising, the imposition of sanctions would merely be academic and fruitless, as Simply Slim will not trade in future. In closing it stated that the respondent would be watching closely to see whether the ASA will extend the ruling dated 6 December 2010 to all Complementary and Alternative Medicines who use the word “Slim” in their brand names.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation as submitted by the complainant.
The respondent initially argued that it will no longer be selling, manufacturing or marketing this product in South Africa, and that this negates the need for any sanction.
While there is perhaps some merit to this, the Directorate is mindful of the fact that the respondent has somewhat of a history with the ASA.
- In Simply Slim / B Friis / 14445 (18 December 2009), the Directorate upheld a complaint against the respondent’s advertising on the basis that it did not specifically and clearly state that its product would only be effective when used in conjunction with a kilojoule controlled and balanced diet, which is a requirement of the Code.
- In Simply Slim / H A Steinman /14940 (10 February 2010), the Directorate accepted the respondent’s voluntary undertaking to remove a host of weight loss claims from its advertising.
- In Simply Slim / HA Steinman / 15605 (6 December 2010) the Directorate, inter alia, ruled against a number of the respondent’s efficacy claims, and also its name “Simply Slim” on the basis that the implied weight loss was unsubstantiated.
- Finally on 10 February 2011, the Directorate found that the respondent was in breach of earlier rulings as it continued making unsubstantiated weight loss claims.
Based on this, the Directorate is somewhat sceptic about the respondent’s submissions that it will not be marketing this product again. The above history indicates that the respondent appears unable to abide by its own undertakings or by Directorate rulings. It is also worth noting that at the time of preparing this ruling, the respondent’s website, using the name Simply Slim, was still active and promoting, inter alia, this very product.
In light of this, the Directorate believes that it has a duty to consider the issue of sanctions, if nothing else, to obtain finality, and possibly prevent further incidents of breach of the ASA Code or existing rulings.
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 the “severest level of sanctions” which may have some effect and recommended that the respondent to place advertisements in all major magazines and newspapers in which the advertisements were run, pointing out that there is no proof that Simply Slim can result in weight-loss.
The Directorate does not believe such a severe sanction is called for at this time. If, for example, it turns out to be true that the respondent will no longer be manufacturing, selling, or marketing this product, such a sanction would be unnecessarily prejudicial to the respondent, and would ultimately serve no purpose, as it is not sensible to “inform” the public about a product that is not on the marketplace.
However, in the event that the product is again advertised despite the respondent’s comments to the contrary, the Directorate believes a sufficient safeguard needs to be in place to ensure that similar unsubstantiated weight loss claims are not again made in a manner that exploits the consumer.
In light of the above, the Directorate contemplated whether or not a general pre-clearance sanction as provided for in Clause 14.3 of the Procedural Guide was warranted.
For this sanction to be imposed, the respondent must have had more than one adverse ruling in the last 12 months. In addition, the Directorate is obliged to consider, inter alia, what action the respondent took to ensure compliance, the extent of exposure of the offending advertising, whether the respondent acted deliberately to circumvent or disregard the Code, the number of times this sanction has been imposed against the respondent before, and whether or not the respondent’s actions are likely to bring advertising into disrepute.
From the above it is clear that the respondent has had more than one adverse ruling in the 12 month period preceding the breach in the current matter. All these rulings relate to the respondent’s weight loss product, and appear to indicate no material intention to comply with the requirements of the Code or the implications of existing adverse rulings. In addition, the tendency of making unsubstantiated claims will arguably bring advertising as a whole, or at the very least within the Complementary and Alternative Medicine industry into disrepute.
Accordingly, the Directorate, at its discretion, imposes a sanction on the respondent in terms of Clause 14.3 of the Procedural Guide. In terms of this sanction, the respondent is required to submit all future advertising for any of its products to the ACA Advisory Service for approval prior to publication, at the cost of the respondent.
It is noted that this sanction is valid for a period of six months from the date of this ruling.
In light of the above, an Ad-Alert will be sent to all ASA members advising them of this sanction.