Posted 29 April 2012
Does Ultima Fat Away result in weight loss?
Well there is certainly not a shred of evidence that it does. Here is an old ASA ruling, which followed an arbitration by Prof Tessa vd Merwe, where she ruled that “After considering all the documentation before her, Prof van der Merwe submitted that these claims could not “be substantiated based on scientific studies.””
And considering that the company is still selling this product years later, with the same unproven claims, suggests that one cannot trust ANYTHING that this company sells. Ultima products, owned by Tim Shead, sells their product in Dischem and other outlets, and online. I think that it is an affront to consumers, to the ASA and to Prof Tessa v.d. Merwe that this company continues to abuse the trust of consumers in this way.
Read the devastating arbitration report. The ASA ruling follows.
| Ultima Fat Away / Dr HA Steinman / 1783|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Advanced Health Foods CC Respondent
07 Dec 2005
In Ultima Fat Away / Dr HA Steinman / 1783 (25 April 2005) the Advertising Standards Committee (the ASC) referred the above matter to arbitration in terms of Clause 16 of the Procedural Guide.
The parties could not reach agreement on a suitable arbitrator. Accordingly, in consultation with the parties, the ASA in terms of Clause 16.3.1 of the Procedural Guide, appointed Prof Maria Terésa van der Merwe as arbitrator for the matter.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Procedural Guide, Clause 16 – Arbitration
The arbitration report was forwarded to both parties.
In essence, the arbitrator submitted that the documentation submitted and evaluated does not support the claims made on the packaging.
RESPONSE BY COMPLAINANT
The complainant did not submit any further arguments subsequent to the report.
RESPONSE BY RESPONDENT
The respondent submitted, inter alia, that the arbitration report (the report) never specifically addressed the three claims contested by the complainant, nor does it list any of the qualifying statements, explanations or disclaimers contained on the packaging, or contextualise the weight loss claims with such disclaimers.
Furthermore, the report confirms that “Caffeine is known to induce thermogenesis and elevate the basal metabolic rate” as well as “Caffeine is also known to increase fat oxidisation”, which in itself confirms the claims made on the packaging.
The respondent also submitted that the report centres on obesity, which was not an issue raised by the complainant. The reference made to “significant weight loss” in the report should be viewed in line with the obesity discussions, and not the efficacy of the claims in question. In this regard, the respondent also noted that its packaging states, “This product is not intended to diagnose, treat, cure, or prevent any illness or disease.”
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In this matter, the Directorate initially accepted the substantiation submitted by the respondent and dismissed the complaint. The complainant appealed this ruling and submitted conflicting evidence. The ASC then referred the matter to arbitration in light of the conflicting evidence before it.
The matter was referred to arbitration to determine whether the following claims, as raised by the complainant in his original letter of complaint, were adequately substantiated in terms of Clause 4.1 of Section II of the Code:
• “Effectively blocks fat absorption”;
• “Helps eliminate existing body fat”; and
• “Energises and boosts metabolic rate”.
It is noted that the ruling will therefore only consider and apply to these three claims, within the context of the packaging in question as a whole.
The Directorate firstly notes that any issues arising with regards to the merits of the conclusions reached in the report cannot be considered by the ASA, because it is not a medical expert and cannot draw any conclusions from documents pertaining to such matters. It is for this exact reason that the arbitration process is used when there is conflicting professional advice. The Directorate is therefore fully reliant on the findings of the relevant arbitrator, in this case, Prof van der Merwe.
While the respondent’s concerns regarding the findings are noted, it must be pointed out that both the complainant and respondent were afforded an opportunity to compile and submit as much evidence as it wished to the ASA for presentation to the arbitrator. Both parties submitted the documentation they believed to be sufficient, after which the ASA instructed the arbitrator to proceed.
Accordingly, and in terms of Clause 16.2 of the Procedural Guide, the technical conclusions reached in the arbitration report are final and binding on all parties. The Directorate notes that the respondent raised certain concerns over the findings of the arbitration report and points out that the only question before it is whether or not the claims, in the context used in the advertising, are substantiated by the arbitrator’s report.
The respondent argued that the report is largely focussed on obesity, whereas this product does not claim to assist in combating obesity.
There is, however, nothing on the packaging to communicate to the hypothetical reasonable person that this product would not deliver the advertised results for obese people as well as moderately overweight people. In particular, the disclaimer “This product is not intended to diagnose, treat, cure, or prevent any illness or disease” would not be understood by the hypothetical reasonable person to refer to obesity. Accordingly, the respondent’s contention that the report centres on obesity and is flawed as a result is negated.
The overall impression created by the packaging claims referred to by the complainant is that this product would cause any reasonable user to experience the effects claimed.
The respondent argued that the arbitrator ignored the disclaimers on the packaging. In this regard, the Directorate notes that a disclaimer cannot serve to alter an impression created by claims appearing on the packaging. Applying this principle to the respondent’s packaging, it means that the overall impression that the product would deliver the claimed results for all users cannot be negated by a disclaimer indicating that the product is not meant to “diagnose, treat, cure, or prevent any illness or disease”, as submitted by the respondent. In any event, there are no disclaimers that address the arbitrator’s findings that the product does not have the claimed efficacy.
After considering all the documentation before her, Prof van der Merwe submitted that these claims could not “be substantiated based on scientific studies.”
The duty of interpreting the arbitration findings in the context of the advertising in question and determining whether or not the claims as they appear on the packaging contravene the Code lies at the Directorate’s door. The Directorate can find nothing in the advertising material to negate the application of the arbitrator’s finding that the product cannot deliver the claimed results.
In light of the above, the claims in question are not substantiated in terms of Clause 4.1 of Section II of the Code.
The respondent is therefore required to:
1. Withdraw the claims in their current format,
2. The process of withdrawing the claims must be actioned with immediate effect,
3. The process of withdrawing the claims must be completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and
4. The claims may not be used again in future.
The complaint is upheld.
Read also the devastating arbitration report.