Posted 30 May 2013
This is an interesting ruling and shows how perception can influence an ASA ruling. I first complained about Ultima Fat Away many years ago, which resulted in an arbitration which found in my favour.
Two years later, I realised that the name of a product could also be regarded as also misleading and I started laying complaints against this aspect as well.
Following a breach ruling in Ultima Fat Away, I realised that I had never laid a complaint against the name of the product which is clearly misleading for it claims being effective, when it is not, and therefore I subsequently did. Because of the timing of my complaint, the argument could be made that it appeared to be vexatious. Thankfully the ASA did conclude “. . . most certainly does not afford the respondent a “free ticket” to carry on using terminology that implies efficacy that it was unable to prove.” In other words, they need to change the name of this product.
|Ultima Fat Away / HA Steinman / 20747|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
P2Life (Pty) Ltd Respondent
21 May 2013
Dr Steinman lodged a consumer complaint against the respondent’s name of its product, being “Fat Away”.
The complainant explained that there have been several previous rulings against the product on the basis that no substantiation exists for any claim of efficacy. Given that the product cannot prove to have any effect on weight loss or fat loss, the name cannot be justified, and should be removed.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were considered relevant:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
Clear Copy, on behalf of the respondent, argued that the complainant has now become vexatious and has demonstrated malicious intent.
It explained that the complainant first complained about this product several years back, ultimately culminating in arbitration. The findings of this arbitration process were communicated in December 2005. It is surprising that throughout that entire process, which was a lengthy one and would have involved several submissions and rulings, the complainant never once took issue with the name of the product.
This complaint immediately followed a ruling where the Directorate dismissed the complainant’s breach allegation.
It pointed out that the product has been available on the market for this entire period. Surely, if the complainant were truly campaigning for the good of consumers, he would have taken issue with the name earlier, seeing that he was at all times aware of the product and its existence?
The fact that this complaint was lodged a few days after the Directorate denied the complainant’s request for sanctions against the respondent suggests that this is as a result of “sour grapes”. If this complaint were genuine, it would have come to light 7 years ago already.
In conclusion, it argued that the complainant selectively only targets complementary medicines, and should, for all the above reasons, be regarded as a vexatious complainant.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
As correctly noted by the respondent, this dispute has a rather protracted history. On 23 November 2004, the first ruling was issued under reference Ultima Fat Away / Dr HA Steinman / 1783. This ruling concerned the claims “Effectively blocks fat absorption”, “Helps eliminate existing body fat” and “Energises and boosts metabolic rate”. On the strength of verification from Mr Brent Murphy, a consulting pharmacist, the Directorate accepted that the claims were substantiated.
The complainant appealed this ruling, and ultimately, in a ruling issued on 25 April 2005, the Advertising Standards Committee (the ASC) ordered that the matter be referred to arbitration in accordance with Clause 16 of the Procedural Guide. On 7 December 2005, on the strength of the arbiter’s findings, the respondent was instructed to withdraw the three claims at issue.
On 17 October 2006, the Directorate issued a ruling upholding a breach allegation against the respondent for making the same claims on its packaging despite the instructions for withdrawal. No sanction was imposed as a result of this.
On 13 August 2007, the respondent was again found in breach for making the same kind of claims on its website. A once-off pre-clearance sanction in terms of Clause 14.2 of the Procedural Guide was imposed on the respondent.
Finally, on 18 July 2012, the Directorate again upheld a breach allegation against the respondent’s website (it should be noted that the legal entity owning the product and brand had since changed). No sanctions were imposed on the respondent.
Two days later, the complainant lodged a new complaint, this time taking issue with the name “Fat Away” on the basis that any efficacy implied by the name would be unsubstantiated, given the arbiter’s findings in 2007.
The Directorate is faced with a difficult question, because the relevant variables in this equation are as follows:
The complainant was aware that the product’s name was “Fat Away” as far back as 2004. As a result, the complainant had ample time to take issue with the name and could presumably have done so at any time, but at least once the arbitration proceedings had been finalised in 2007. For reasons unknown to the Directorate, however, the complainant did not do so until now.
By all counts, the respondent knew as far back as 2007 that any weight loss efficacy (whether expressly stated or indirectly implied) was unsubstantiated. As a result, it could not be oblivious to the fact that a product name such as “Fat Away” could potentially be problematic, given that it clearly implies the removal of fat and associated weight loss assumptions. Despite this, however, it carried on stocking and marketing the product under this name for a further six years to date.
On a balance of probabilities, however, the Directorate is inclined to agree that this complaint appears to have been motivated by intent to frustrate rather than to serve the good of the consumer as a whole. The complainant has a long history with the ASA, and has lodged numerous complaints, and has taken part in his fair share of arbitrations. It is undeniable that he is relatively well versed in ASA proceedings.
In addition, and specifically relevant here, the Directorate notes that the concept of complaining against a product name is nothing novel for the complainant. The ASA’s electronic archives show rulings as far back as 2006 where the same complainant adopted very much the same approach of complaining against a product name on the basis that the efficacy claims made for the product were found to be unsubstantiated (refer Reduce Fat Fast / Dr Steinman / 4613 (6 April 2006), Bioslim Fat Attack / Dr HA Steinman / 4740 (20 June 2006) and Ultima Cut & Trim / H A Steinman / 562 (20 September 2006) for example). It is unclear why the complainant waited several years to complain about the product name despite being aware of the name at all times.
Objectively speaking, one cannot but reach a conclusion that this latest complaint, which was submitted to the ASA a mere two days after the latest breach ruling, was not of a bona fide nature.
On this basis, the Directorate is declining to investigate this particular complaint at this time.
It is expressly noted, however, that the above decision was based largely on the fact that the complainant was always aware of the name of the product, yet only opted to complain about it years later. This ruling does not prohibit the complainant from objecting to other product names that imply unproven efficacy in general, and most certainly does not afford the respondent a “free ticket” to carry on using terminology that implies efficacy that it was unable to prove.