In a ruling dated 28 November 2006, the ASA ruled against the USN’s print advertisement for its “Cellu-Firm” product. In a letter dated 26 February 2008, a consumer argued that USN is in breach of the original ruling as it continues making misleading statements about the product on its website.
The ASA ruled in favour of the complainant.
USN Cellu-Firm / HA Steinman / 5622
Ruling of the: ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd Respondent
08 April 2008
In a ruling dated 28 November 2006, the Directorate ruled against the respondent’s print advertisement for its “Cellu-Firm” product. The respondent was instructed to withdraw the advertisement as it failed to submit substantiation in terms of Clause 4.1 of Section II to support the relevant claims, On 2 April 2007 the Directorate dismissed a breach allegation from the complainant.
SUBSEQUENT TO THIS RULING
In a letter dated 26 February 2008, the complainant submitted that the respondent is in breach of the original ruling as it continues making misleading statements about the product on its website at www.usn.co.za/products_weightloss_cellufirm.htm. A printout from the website was also submitted.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the following clauses of the Code were taken into consideration: • Procedural Guide, Clause 15 – Enforcement of rulings • Procedural Guide, Clause 14 – Sanctions
The respondent submitted arguments on the merits of the matter, and advised that the product is being discontinued due to lack of shelf space. It also submitted that “Our website…contains the basic information for the product, and even on this site all claims were removed in 2006 already. USN therefore does not seem to have breached the ASA ruling…and will most certainly not be doing so in future, as the product has now been discontinued”.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The original ruling stipulated that the respondent did not submit adequate substantiation in terms of the Code to confirm the “anti-cellulite” claims. the respondent’s attention was specifically drawn to the provisions of Clause 15.5 of the Procedural Guide, which reads as follows: “Offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium”.
It was therefore patently clear that any claims implying that this product has an effect on cellulite had to be removed. The website advertising that forms the basis of the breach allegation depicts the product and name, and gives an explanation of “What is cellulite?” It then prescribes dosage of use and advises customers to “Drink 2-3 litres of water per day while using the product”. This clearly implies that the product has some effect on cellulite, and can presumably be taken to address the problem. Therefore, it is essentially communicating a similar message to that originally ruled to be unsubstantiated.
Other than alleging that there was a “communication gap” initially, and that this product is being discontinued for business reasons, the respondent has put no reason forward as to why advertising promoting this product as an anti-cellulite product was still being used despite the fact that no new substantiation was submitted to and accepted by the ASA. It is also significant to note that at the time of ruling, the relevant advertising was still available on the respondent’s website. Given the above, the respondent is in breach of the original Directorate ruling and therefore in breach of Clause 15 of the Procedural Guide.
In light of this, the complainant is afforded ten (10) working days to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide are appropriate, and if so, which sanctions. After this time, the respondent will be afforded an opportunity to comment on this issue, after which the Directorate will proceed in terms of Clause 8.5 of the Procedural Guide. The breach allegation is upheld.