USN Cellu-Firm – ASA breach ruling – 02 April 2007

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This Clicks advert promoting this USN product continued to infer that this product could reduce cellulite in spite of the previous ASA ruling. A breach complaint was laid with the ASA. USN responded with “The current advertisement displays certain products available at Clicks, and only shows the packaging of the product in question. No claims are made about this particular product. The respondent submitted that it did not supply Clicks with the image used on its broadsheet advertisement. Clicks designed and published its own advertisement with an old image. In addition, the respondent has changed its own advertisements, images and labels, and informed Clicks about the implications of the previous ruling”.

The ASA concluded that: “The breach allegation is accordingly dismissed. The respondent is, however, cautioned that third party retailers should be alerted to the import of the ASA ruling. Should further, similar, breaches occur, the contents of this ruling may be taken into account”.

USN Cellu-Firm / HA Steinman / 5622

Ruling of the: ASA Directorate

In the matter between:

DR HA Steinman Complainant(s)/Appellant(s)

Ultimate Sports Nutrition (Pty) Ltd Respondent

02 April 2007

http://www.asasa.org.za/rulings/USN-CellU-Firm-HA-Steinman-5622-3625

In a ruling dated 28 November 2006, the Directorate ruled against a print advertisement for USN’s “Cellu-Firm”. The respondent was required to withdraw its advertising as it failed to submit substantiation in terms of Clause 4.1 of Secton ll of the Code to support the claims made on its advertising.

SUBSEQUENT TO THE RULING

In essence, the complainant submitted that the respondent is in breach of the ruling as the product was advertised on a Clicks flyer insert in the Sunday Times of 11 February 2007. The advertised “special” could not occur without collaboration and knowledge of the respondent.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint the following clauses of the Code were taken into account: • Procedural Guide, Clause 14 – Sanctions • Procedural Guide, Clause 15 – Enforcement of rulings

RESPONSE

In essence, the respondent denied that it breached the ruling of 28 November 2006 as Clicks designed and published its own advertisement. In addition, it changed its own advertisements, images and labels prior to this broadsheet advertisement, and as a result of the previous ruling. The respondent also submitted that it did not supply Clicks with this old image for its advertising. The respondent further submitted that it has informed Clicks of the restrictions of this image and the implications of the previous ruling.

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation submitted by the respective parties. The Directorate ruling of 28 November 2006 stipulated that the respondent must remove the material ruled against within the deadlines set out in Clause 15.3 of the Procedural Guide. The Directorate is therefore firstly tasked with determining whether the current advertisement is similar to the previous advertisement to such an extent that it indicates a breach of the previous ruling. If so, the Directorate must determine if the respondent is responsible for such a breach.

The previous advertisement featured a woman exercising and a description of cellulite and of this product. The packaging of the product was also shown. The advertisement contained claims like “Cellu-Firm is formulated with a precise blend of herbal extracts to increase blood flow and the metabolic rate, freeing the tramped fat and eliminating the cellulite”.

The current advertisement displays certain products available at Clicks, and only shows the packaging of the product in question. No claims are made about this particular product. The respondent submitted that it did not supply Clicks with the image used on its broadsheet advertisement. Clicks designed and published its own advertisement with an old image. In addition, the respondent has changed its own advertisements, images and labels, and informed Clicks about the implications of the previous ruling.

The respondent also clarified that, although it contributes to the advertising spend of Clicks, it does not have control over the design of its broadsheet advertisement. Accordingly, it was not involved in creating the content of the advertisement and cannot be held accountable for the use of the image of old packaging.

The Directorate notes that the two advertisements are significantly different, and none of the claims previously considered appear on the current advertisement, save for the words “anti-cellulite” on the actual packaging.

In addition, the respondent is not ex facie responsible for creating the advertisement. Given that the advertisements are not the same, that the respondent did not create the advertisement, and that the respondent advised Clicks on the implications of the previous ruling, the Directorate is satisfied that the respondent did not breach the previous ruling.

Accordingly, the respondent is not in breach of Clause 15 of the Procedural Guide and therefore sanctions in terms of Clause 14 are not warranted at this time.

The breach allegation is accordingly dismissed. The respondent is, however, cautioned that third party retailers should be alerted to the import of the ASA ruling. Should further, similar, breaches occur, the contents of this ruling may be taken into account.

 

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