Ultima Fat Away – ASA breach ruling

Posted 22 July 2012

In December 2005, after a process of arbitration in terms of Clause 16 of the ASA Procedural Guide had been completed, the Directorate ruled that the following claims could not “be substantiated based on scientific studies”: • “Effectively blocks fat absorption”; • Helps eliminate existing body fat”; and • “Energises and boosts metabolic rate”. The respondent at the time (Advanced Health Foods CC) was instructed to withdraw the claims with immediate effect. A consumer submitted that the respondent is still marketing the product in stores and on its website with the same claims as before and any claims regarding weight-loss efficacy are unproven. This is clearly a breach of the previous rulings.

The pharmacist, Brent Murphy (of Solal Technologies) substantiated the claims for the product and the ASA initially ruled in favour of Ultima. Arbitration was requested and was performed by Prof. Tessa vd Merwe (among other, previously Honorary Secretary for the International Association for the Study of Obesity). She dismissed  Murphy’s substantiation making the explicit comments that one cannot extrapolate studies in rats (or animals) to humans. 

This ruling demonstrates that even healthcare practitioners can be wrong, and reinforces the need for the existence of an ASA “with teeth.” It also demonstrates that a company can willfully continue to make the same or similar claims as previously ruled against, and that a policing and enforcement component is always required (something the ASA lacks; that the MCC has but appears stagnant).  

Ultima Fat Away / HA Steinman / 1783
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
P2Life (Pty) Ltd Respondent

18 Jul 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6174

BACKGROUND
In Ultima Fat Away / Dr HA Steinman / 1783 (7 December 2005), after a process of arbitration in terms of Clause 16 of the Procedural Guide had been completed, the Directorate ruled that the following claims could not “be substantiated based on scientific studies”:

• “Effectively blocks fat absorption”;

• Helps eliminate existing body fat”; and

• “Energises and boosts metabolic rate”.

The respondent at the time (Advanced Health Foods CC) was instructed to withdraw the claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

SUBSEQUENT TO THIS RULING
In a letter dated 30 April 2012, Dr Steinman submitted, in essence, that the respondent is still marketing the product in stores and on its website, http://www.ultima.bz/fat-away/weight-loss/fat-away.html?vmcchk=1 with the same claims as before and any claims regarding weight-loss efficacy are unproven. This is clearly a breach of the previous rulings.

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

RESPONSE
The respondent submitted, inter alia, that the current packaging is not the same as was originally complained of, and does not contain the claims referenced in the rulings.

Regarding the website, the respondent submitted that if its market related terminology is of any concern to the ASA, it will gladly make amendments in order to remain compliant. It had already taken a pro-active stance and blocked the access to Fat Away on its website. It added that the only complaint that has ever been filed with the ASA with regard to Fat Away in the past six and half years is that of the complainant. No consumer has voiced any concern whatsoever.

When noting that the respondent appears to be a different company, the Directorate requested clarity on whether or not due diligence was done before taking over this product. The respondent explained that P2Life (Pty) Ltd had full financial knowledge of Advanced Health Foods CC (the original respondent). It submitted that the Fat Away product box has remained consistent from what was used by Advanced Health Foods CC with the exception of the company information changing to P2Life.

The respondent further argued that the current Fat Away product box does not contain any of the three quotes that the ASA ruled against. It added that the old claim against Advanced Health Foods CC and the new complaint against P2Life should be seen completely separate.

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

The first point that has to be made is that the current respondent is not ex facie the same as the original respondent. P2Life (Pty) Ltd (the current respondent) also confirmed that it acquired the product from Advanced Health Foods (the original respondent).

When conducting a Google search for “P2Life” and “Advanced Health Foods”, one of the first results returned a link to http://swimhistory.org/tim%20shead.html, which details the history and story of Mr Tim Shead. This link explains that Mr Shead “…started up a Nutritional foods company and currently retains ownership in two Health Food companies, Advanced Health Food cc [the original respondent in this matter], a retail supplier of Health food supplements under the brand ‘Ultima’ [the product at issue] and a new Direct Marketing Health food company called P2Life [the current respondent]”.

If nothing else, this suggests a link between the original respondent and the current respondent. Given this, the Directorate has its doubts over whether or not the current respondent could be oblivious to any history insofar as this product and ASA rulings is concerned, especially as this matter proceeded all the way to arbitration. It is also worth noting that the respondent clarified that “… P2Life had full financial knowledge of Advanced Health Foods CC …” In light of this, the Directorate is satisfied that the current respondent, as the “new” owner of the product previously ruled against still has to address the breach allegation.

The complainant did not elaborate on whether or not he believes the packaging is also in breach of the previous rulings. His complaint was limited to the information appearing on the respondent’s website, and the Directorate will therefore limit its ruling to this material.

The respondent submitted that it will make amendments in order to remain compliant and had already taken a pro-active stance and blocked the access to Fat Away on its website.

Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

The essential question before the Directorate is whether or not the respondent’s amended advertising is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally complained of.

The original ruling specifically considered the following claims:

• “Effectively blocks fat absorption”;
• Helps eliminate existing body fat”; and
• “Energises and boosts metabolic rate”.

The current webpage, as was displayed on http://www.ultima.bz/fat-away/weight-loss/fat-away.html?vmcchk=1, still contained virtually the same wording. It reads:

“Ultima Fat Away is a fast-acting, FAT ELIMINATOR. It binds the fat content of your meal, safety and gently BLOCKING THE FAT FROM BEING ABSORBED (emphasis added) into your system. It also quickly and EFFECTIVELY HELPS TO STRIP AWAY YOUR EXISTING BODY FAT (emphasis added). Thirdly, it helps you to FEEL MORE ENERGETIC (emphasis added) in order to promote physical activity. Finally, it helps to STIMULATE YOUR METABOLISM (emphasis added) into burning more calories for maximum rewards”.

When considering the wording, and more particularly the sections emphasised by the Directorate, the underlying take-out is materially similar in context and content to the claims ruled against.

Given the above, the Directorate is satisfied that the respondent’s current website advertisement is in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.

However, in light of the fact that the current respondent has not had any previous run-ins with the ASA, and in light of the fact that it has confirmed its willingness to comply, the Directorate does not believe that additional sanctions are necessary at this time.

The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide. This ruling may also be taken into consideration at such a time.

In accordance with the finding above, however, the respondent is instructed to immediately withdraw the claim that gave rise to the breach allegation from its website. This withdrawal is to be completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires an advertiser to remove offending claims from any media in which they appear. The above finding should therefore be implemented on any and all of the respondent’s advertising that makes the same, or materially the same claims.

Finally, in an effort to assist the respondent, the Directorate draws attention to the provisions of Clause 4.1.7 of Section II of the Code, which allows for new substantiation to be submitted and considered by the Directorate, subject to the relevant procedural requirements.

The breach allegation is therefore upheld but no sanctions will be imposed at this time.

2 Responses to Ultima Fat Away – ASA breach ruling

  1. nosipho 19 March, 2014 at 9:57 pm #

    I love Fat Away its doing wonders for me thank you so much

  2. chamz 4 February, 2016 at 12:23 pm #

    its not working for me ey I feel really sick after drinking it

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.