USN Cellu-Firm – ASA Breach ruling – 8 June 2009

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USN continued to make unsubstantiated claims for Cellu-Firm, resulting in a breach complaint to the ASA. The ASA ruled in favour of the consumer.

USN CELLU-FORM / 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 June 2009

http://www.asasa.org.za/rulings/USN-Cellu-Form-HA-Steinman-5622

BACKGROUND

In a ruling dated 28 November 2006, the Directorate ruled against the respondent’s advertising claims that its “Cellu-Firm” product was an effective anti-cellulite product. The respondent was instructed to withdraw the relevant advertising with immediate effect within the deadlines stipulated in the Code. On 2 April 2007, the Directorate dismissed a breach allegation by the complainant on the grounds that the advertising complained of was not created by the respondent, and was significantly different to the advertisement originally complained of. In USN Cellu-Firm / H A Steinman / 5622 (8 April 2008), the Directorate found the respondent in breach of its earlier ruling dated 28 November 2006. In this instance, the advertising that gave rise to the breach allegation appeared on the respondent’s own website. On 16 October 2008 the Directorate imposed a sanction in terms of Clause 14.3 of the Procedural guide. However, this sanction was suspended for a period of six months.

SUBSEQUENT TO THE RULING

On 24 April 2009, Dr HA Steinman lodged a breach complaint regarding the respondent’s website, www.usn.co.za . It was submitted that the respondent continues to make misleading statement regarding USN Cellu-Firm product. On 4 May 2009, he clarified that the product is promoted under the auspices that it “Firms up your skin and helps decrease the appearance of cellulite”. This, coupled with the name “Cellu-Firm” essentially creates the same unsubstantiated expectation. Clearly the respondent has very little regard for the ASA and its rulings.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

Given that the new complaint related to a similar claim as that previously considered, the Directorate investigated the complaint as a possible breach allegation of the previous ruling. Clause 15 (Enforcement of rulings) of the Procedural Guide was therefore taken into account.

RESPONSE

The respondent submitted that this product has been discontinued and that the advertising was removed from the USN website when the ASA requested it to do so more than a year ago. It appears that part of the product profile was inserted on the shopping cart for USN at another stage, with the new web designing company not being aware that it was removed for a reason. No-one picked up the error as the respondent and new web designer focussed mainly on the main website. The respondent apologised for the logistical error and submitted that it was unintentional. In addition, the respondent stated that it was again removed from the shopping cart.

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation submitted by the respective parties. The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. It is firstly noted that the breach allegation again relates to the respondent’s website. In addition, the Directorate has no documentary proof to show that the respondent gave an instruction to remove the claim from its own website.

With any consideration of breach, a key factor is whether or not a respondent made a concerted effort to comply and remove the advertising complained of. The respondent appears to have overlooked the advertising still appearing on its websites.

In this regard, it is noted that the respondent, in the ruling dated 8 April 2008, indicated that it was discontinuing the product entirely, and would not breach the original ruling again in future. The correspondence received from the respondent at that time also attributed the breach to a “communication gap in the company and the web designer”.

In Bioslim Once A Day / H A Steinman / 10433 (18 December 2008) the Directorate was provided with a similar recurring explanation, but found the respondent in breach. The point was made that a respondent to any dispute carries the responsibility of ensuring compliance. It is the Directorate’s view that the same approach applies in this instance. While the Directorate is willing to accept that inadvertent errors may sometimes give rise to breaches, it is telling that the respondent has been called to answer to three breach allegations since the original ruling against this particular product.

It is also telling that the respondent received a suspended sanction in terms of Clause 14.3 of the Procedural Guide as a result of the most recent breach. This sanction lapsed in April 2009. Given the above, it is clear that the respondent is in breach of the previous ruling and therefore contravened Clause 15 of the Procedural Guide.

In light of this breach, 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 equal opportunity, after which the Directorate will proceed in terms of Clause 14.6 of the Procedural Guide.

The breach allegation is upheld.

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