Posted: 07 September 2011
From the same scam artists (Jasmine and Christopher Grindlay) who brought you Hoodia Slender Gel, Slender Max. As soon as the ASA rules against their products, they relaunch them under new branding. Has the ASA bared it’s teeth? Will they believe Allison Vienings (“the expert”), who has “substantiated” a number of other products that I regard as scam products?
Slimbetti Thermo Advance / HA Steinman / 1809
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Water Berry Trading cc t/a Slimbetti Respondent
06 Sep 2011
Dr Steinman lodged a consumer complaint against Slimbetti’s print advertisement promoting its “Thermo Advance” product as “SA’s #1” weight loss product. The advertisement appeared in the 24 June 2011 issue of Vrouekeur magazine and states, inter alia, as follows:
“MAKLIKE, GERIEFLIKE GEWIGSVERLIES” (Easy, convenient weight loss).
“Verslanking en gewigsverlies sonder stres!” (Sliming and weight loss without stress).
“Meer energie en lewenslus” (More energy and lust for life).
“Jelreeks verbeter jou vel se voorkoms en verminder selluliet” (Gel range improves your skin’s appearance and reduces cellulite).
“Kyk hoe die kilo’s verdwyn” (See how the kilos disappear).
“Formule is wetenskaplik bewys” (Formula is scientifically proven).
“Slimbetti se revolisionêre nuwe produkreeks is ‘n opwindende benadering tot gewigsverlies. Die produk is geformuleer om jou te help om daardie onnodige ekstra gewig so vinnig en doeltreffend moontlik te verminder, sonder enige newe-effekte” (Slimbetti’s revolutionary new product range is an exciting approach to weight loss. The product is formulated to help you reduce that unnecessary extra weight as quickly and efficiently as possible, without any side-effects).
In addition to this, the complainant also identified the following claims that appear on the respondent’s website www.slimbetti.com:
• Effective Weight Loss
• Craving Control*
• Burns Calories
• Herbal Ingredients
• Increases Metabolic Function
• Boosts Energy
• Controls Your Calories
• Reduces Appetite
• Improves Overall Body Composition
• Interacts Holistically With The Body
• Doctor Endorsed
• Can Be Used With Any Other Slimbetti Product
• Will Not Cause Insomnia
• Will Not Cause Nervousness
In essence, the complainant argued that the advertiser has a substantial history with the ASA for making unsubstantiated weight loss claims ultimately resulting in sanctions being imposed against it for claims made on, inter alia, its www.slendermax.co.za website (which according to the complainant has remained unchanged despite this sanction).
This indicates that the respondent has no regard for ASA decisions or sanctions, thus justifying an Ad Alert against the company and the two individuals (Christopher and Jasmine Grindlay) behind these products.
In relation to the efficacy claims made, the complainant argued that these are unsubstantiated, as many of the ingredients (such as Garcinia Cambogia, Green tea, Citrus Aurantium and Capsaicin) have not been conclusively shown to result in weight loss, and there are no peer-reviewed studies to support any such claims for these ingredients combined. He added that these ingredients may actually cause nervousness and insomnia, and three of them are not actually herbs.
He also questioned the veracity of the claim that the product is “Doctor endorced”, and argued that the product is allegedly “new”, which makes it impossible to be “SA’s #1 Verslanking Middel” (SA’s #1 Weight loss product).
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.1 of Section II (Substantiation) was taken into consideration.
The respondent submitted that it would “revise the stated complaint issues to comply with the regulatory requirements concerning [its] advertising, claims and labelling, with the advice of Allison Vienings, MRA Regulatory Consultants, [its] elected ‘expert’ in this matter”.
It also attached correspondence from Ms Allison Vienings from MRA Regulatory Consultants, an independent regulatory consultancy, explaining that this is to “testify to the above”.
In addition, a host of research articles, supporting literature and abstracts were submitted to support the comments made by Ms Vienings.
The Directorate will deal with the relevant portions of the response in the ruling.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
Merits of the new complaint
While the Directorate notes that the respondent appears to have since included asterisks next to nearly all of the above claims appearing on its website, there is no apparent indication from the website as to what these asterisks should refer to. Similarly, the respondent provided no insight into this. The Directorate therefore does not require these asterisks as material at this time.
The complainant effectively raised three issues:
Whether the respondent can legitimately claim to be SA’s #1 Weight loss product, given that it is “new” to the market,
Whether the respondent can substantiate its claims in accordance with Clause 4.1 of Section II of the Code, and
Whether the respondent deserves to be sanctioned, for what the complainant perceives as consistent and flagrant disregard of previous ASA rulings and sanctions.
For the sake of convenience, the Directorate will consider each of these concerns separately below:
1) “SA’s #1 Verslanking Middel”
This claim appears to only be made in the respondent’s print advertisement that was published in the 24 June 2011 issue of Vrouekeur magazine.
Neither the respondent nor its expert, Ms Allison Vienings commented on this specific claim.
In the absence of any argument on this specific claim, the Directorate has no option but to find that the respondent has no substantiation to verify that it can legitimately claim to be “SA’s #1 Veslanking Middel”.
Accordingly, the claim “SA’s #1 Verslanking Middel” is currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
Based on the above, the respondent is required to:
Withdraw the claim “SA’s #1 Verslanking Middel”;
Action the withdrawal of the claim with immediate effect upon receipt of this ruling;
Ensure that the claim is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and
Not use the claim in its current format again in the future
This aspect of the complaint is upheld.
2) Substantiation for efficacy claims made
The respondent did not argue the merits as such, but submitted that it would amend its advertising in accordance with guidance received from its new expert advisor, Ms Allison Vienings.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking is accepted without considering the merits of the matter.
Given that Ms Vienings was particular in terms of how she believed the respondent should amend its advertising, the Directorate is obliged to consider whether the proposed amendments would address the concerns raised by the complainant.
Ms Vienings elaborated on the historic situation in terms of regulating complementary and alternative medicines as well as traditional African medicines, and provided insight on how she believes regulation should, or will take place in South Africa. In dealing specifically with the “FibreSlim” product, she specifically identifies only the following claims:
• “Increase in metabolism and energy, endurance, Ref.6 (1C, 1D) etc.
• Dampen appetite and reduce cravings”
In doing so, she also explained that the disclaimer “Only effective when used in conjunction with a kilojoule controlled balanced diet and moderate exercise” also needs to be made so as not to give an impression that the product on its own could deliver the claimed results.
The Directorate has several concerns insofar as these are concerned:
Firstly, Ms Vienings’ opinion appears to be based on ingredient-specific literature, and not product-specific literature. It is trite that the Directorate cannot accept ingredient based substantiation as adequate for an entire product. The Directorate would therefore not accept the substantiation tendered by Ms Vienings, as the Code requires unequivocal verification that is product specific.
Secondly, Ms Vienings’ opinion only highlights some of the claims made by the respondent, being “Increases Metabolic Function”; “Boosts Energy”; “Reduces Appetite” and apparently “Craving Control”. This presumably means that all the other efficacy claims disputed by the complainant remain unapproved by Ms Vienings. She even goes so far as to state “Delete all the other claims on your website and in advertising as per your memo to me”. Given that the Directorate was not provided a copy of said “… memo to me …” there is no way of knowing whether or not the respondent intends to delete all its efficacy claims save for the four highlighted above. It should also be kept in mind that even the verification for “Increases Metabolic Function”; “Boosts Energy”; “Reduces Appetite” and apparently “Craving Control” is based on ingredient-based substantiation, and not product-specific substantiation, which is still problematic.
Finally, Ms Vienings repeatedly emphasises that the disclaimer “Only effective when used in conjunction with a kilojoule controlled balanced diet and moderate exercise” should be made in advertising. However, the Directorate notes that the statement “Only effective when used in conjunction with a restricted or kilojoule controlled balanced diet” appears once only, on the respondent’s homepage, and there is no information from the respondent that would suggest it intends to increase the prominence and prevalence thereof.
It has been established in several ASA rulings that when efficacy claims are only said to be valid when a diet and exercise routine are followed, a statement to this effect should be clearly and prominently made in conjunction with such claims (see Clicks Hoodia Appetite Regulator / HA Steinman / 17987 (25 August 2011), as read with Perc Slimming / Dr H Steinman / 1679 (14 January 2005); Perc Slimming / Dr H Steinman / 1679 (10 March 2005); Bioslim Meal Replacement / J Gardener / 4531 (17 March 2006) and Bioslim Once a Day / Gardener / 589 (8 March 2005) for additional clarity). This principle also appears evident from the wording of Clause 2.3.1 of Appendix E of the Code, which deals with advertising for slimming.
Only including the statement “Only effective when used in conjunction with a restricted or kilojoule controlled balanced diet” once on the homepage is not sufficient for this purpose.
Similarly, this statement does not appear at all in the print advertisement complained of.
Given the above, the Directorate does not, at this time, accept the respondent’s undertaking to “revise” its advertising as adequate or likely to address the concerns raised by the complainant.
The respondent’s undertaking to “revise the stated complaint issues to comply with the regulatory requirements concerning our advertising, claims and labelling …” is therefore rejected.
Given the above, it is also apparent that the respondent’s current advertising and efficacy claims are, for the same reasons, unacceptable and currently in contravention of the requirements for substantiation as set out in the Code.
Given all of the above, the Directorate is satisfied that the claims disputed by the complainant are currently not adequately substantiated within the meaning of Clause 4.1 of Section II of the Code.
Based on the above, the respondent is required to:
Withdraw the advertising objected to as well as the claims at issue;
Action the withdrawal of the advertising and relevant claims with immediate effect upon receipt of this ruling;
Ensure that the advertising and claims are withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and
Not use the advertising or relevant claims in the current format again in the future.
This aspect of the complaint is upheld.
3) Sanctions for repeated breaches of the Code and previous rulings
The complainant correctly pointed out that Mr and Mrs Grindlay are directly involved in this “new” product and advertising.
In Hoodia Slender Gel / HA Steinman / 12857 / 13994 (3 February 2011) the company Planet Hoodia CC (also belonging to Mr and Mrs Grindlay) was sanctioned in terms of Clause 14.4 of the Procedural Guide. In terms of this sanction, Planet Hoodia was ordered to publish, and pay for, a full page, full colour adverse publicity statement prepared by the ASA in a total of 11 magazines. The ASA’s media members were also advised not to accept any Planet Hoodia advertising until such time as the ASA advises otherwise in writing.
The Directorate cannot overlook the fact that the “new” company (Water Berry Trading) and “new” product (SlimBetti) appears to have come about subsequent to the above sanction. It can also not be overlooked that this “new” company and product again belong to Mr and Mrs Grindlay, or that the product is again making weight loss and related claims that are not substantiated in accordance with the requirements of the Code.
In addition to this, the Directorate is mindful of the fact that the respondent’s “Fibre Slim” product has also been ruled against (see ruling under the reference SlimBetti Fibre Slim / HA Steinman / 18208 for additional clarity and context).
On a balance of probabilities, it would appear that the respondent has found itself in a situation where it was no longer able to disregard ASA rulings insofar as its company Planet Hoodia CC was concerned, and the only way to keep advertising products with (as of yet) no proof of efficacy, was to start a “new” company, and market a “new” product. This would appear to have been a calculated attempt to circumvent existing ASA rulings and sanctions, and appears to show clear intention to disregard them.
Given this, and given the above findings, the ASA will consider whether the respondent’s behaviour warrants sanctions, and if so, which sanctions should be imposed. First, however, the parties will be given an opportunity to comment on the issue of sanctions. The complainant will first be given 10 days to comment, after which the respondent will be given 10 days to comment. It is specifically noted that the Directorate may, inter alia, consider whether to impose a sanction in terms of Clause 14.3 of the Procedural Guide, and the respondent should therefore also comment on this specific sanction (as per Clause 14.3.4 of the Procedural Guide).
The complaint is upheld.