USN Phedra-Cut Lipo XT – ASA breach ruling

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02 October 2014

On 14 July 2014 the complainant submitted a breach complaint against the respondent’s website advertising for USN Phedra-Cut Lipo XT product. He referred to a previous adverse ruling USN Phedra-Cut Lipo XT / MM Davy / 20382 (26 July 2012), as well as the original ruling in this matter, and argued that the respondent’s continued use of the claims “ALL DAY WEIGHT CONTROL” and “May assist in weight control are clearly in breach of the relevant rulings and warrant sanctions against a serial offender.

Usn / Rw De Lange / 20632
Ruling of the: ASA Directorate
In the matter between:
Dr Rudi De Lange Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd Respondent
17 September 2014
BACKGROUND

http://www.asasa.org.za/rulings/usn-rw-de-lange-20632
In USN Phedra-Cut Lipo XT / RW De Lange/ 20632 (27 March 2013) the Directorate accepted the respondent’s voluntary undertakingto remove the claim “WITH NO GASTRIC DISCOMFORT” within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

The Directorate further found that the respondent’s advertisement was in breach of the provisions of Clause 2.3.1 of Appendix D because the claims and language used did not make it clear that the product was ONLY effective when used in conjunction with a kilojoule controlled and balanced diet.

Finally, the Directorate ruled that the respondent’s efficacy and weight loss claims were unsubstantiated, and in breach of Clause 4.1 of Section II of the Code.

The respondent was instructed to withdraw the relevant claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
Subsequent To This Ruling

On 14 July 2014 the complainant submitted a breach complaint against the respondent’s website advertising for USN Phedra-Cut Lipo XT product. He referred to a previous adverse ruling USN Phedra-Cut Lipo XT / MM Davy / 20382 (26 July 2012), as well as the original ruling in this matter, and argued that the respondent’s continued use of the claims “ALL DAY WEIGHT CONTROL” and “May assist in weight control are clearly in breach of the relevant rulings and warrant sanctions against a serial offender. The URL provided by the complainant was: http://www.usn.co.za/product/weight-control/weight-control-support/phedracut-lipo-xt-88.html.

The complainant further referred to a ruling under the reference USN Phedra-Cut Hardcore / HA Steinman / 20411 (16 January 2013), in which the Directorate rejected the respondent’s undertaking to remove the disputed advertising, and contemplated imposing more severe sanctions.
Relevant Clauses Of The Code of Advertising Practice

In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
Response

Attorneys Bouwers Inc., on behalf of the respondent, submitted that the breach allegation contains countless misleading and factually flawed statements, as well as various highly subjective and emotive statements which suggest a deliberate attack on the respondent, rather than a concerned consumer.

After dealing with the previous rulings referred to by the complainant, it effectively submitted that the website extract submitted by the complainant contained no information regarding the date on which it was generated or the manner in which it was created.

This information is highly relevant, as the respondent had ceased using the “weight control” product category on its www.usn.co.za website, many months ago. In addition, its PHEDRA-CUT LIPO XT product labelling has, in the last 12 months, undergone several changes (examples were attached to the response).

Given this, and given the absence of any date-relevant information in the breach complainant, it can only draw the conclusion that the complainant’s extract submitted with its breach allegation has been amended by the complainant for the purpose of the present complaint and specifically to suggest that the respondent is in breach of the above ruling when there is no evidence of this. The point was also made that the respondent was unable to access the URL provided by the complainant.
ASA Directorate Ruling

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

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

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 only two claims that appear to apply to the complainant’s breach allegation are “ALL DAY WEIGHT CONTROL” and “May assist in weight control when combined with a balanced eating plan and regular exercise”.

It is firstly noted that the URL provided by the complainant does not appear to function, as neither the respondent nor the Directorate were able to access it.

Secondly, while it is interesting to note that the product is still ex facie promoted as part of the respondent’s “WEIGHT CONTROL SUPPORT” range (see http://www.usn.co.za/product/body-makeover-series/weight-control-support#19), it no longer appears to claim “ALL DAY WEIGHT CONTROL” or “May assist in weight control …” as was previously the case. As this issue was not raised by the complainant, the Directorate is not in a position to deal with this particular aspect in this ruling.

Given the above, and given that the complaint does not provide any information as to when the complainant was able to access the screen grab inserted into his letter, the Directorate had no other option but to dismiss the complaint.

The respondent’s current advertising is not found to be in breach of the previous ruling. The respondent can therefore not be said to have breached the provisions of Clause 15.3 of the Procedural Guide for the reasons advanced by the complainant.

The breach allegation is dismissed, and there is no need to consider the issue of sanctions at this time

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