The original ruling against the claims for USN Cellu-Firm was made in November 2006. Three years later, USN was still making unsubstantiated claims for this product and in essence, ignoring ASA rulings, and in spite of previous sanctions. A consumer laid a complaint arguing that severe sanctions should be implemented. The ASA imposed sanctions, but not of any significance.
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
15 July 2009
In a ruling dated 8 June 2009, the Directorate ruled that the respondent was in breach of its earlier ruling dated 23 November 2006, as claims similar to those originally ruled on still appeared on the respondent’s website. The complainant and the respondent were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted that the respondent has a history of numerous misleading products being reported to the ASA and, although the ASA cannot rule against a product that has not been reported yet, sanctions should be sufficiently stringent to send a clear message to the respondent that further transgressions for this product will not be tolerated. The complainant submitted that the respondent is being disingenuous although claim that the advertisement was an inadvertent mistake. The complainant requested the harshest sanctions possible.
RESPONDENT’S COMMENTS ON SANCTIONS
The respondent submitted that the product is not on the actual live site of online shopping cart, and Supplement World are mistaken if they say they can get hold of stock from USN. It was submitted that it is very unfortunate and a pity that the respondent is being put in such a bad light through such unfortunate website communication incidence. It was further submitted that all information was removed from the websites in 2008 and thus any sanctions are not in fact applicable and fair, as the respondent did not breach any agreement.
The respondent submitted that it reacted to all the ASA verdicts in the past, and have done its very best in the past few years to turn the page with the ASA after one or two negative rulings due to lack of knowledge on the respondent’s side. The respondent reiterated that the product was discontinued a while ago and has no reason to advertise it anymore.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties. In considering sanctions the Directorate takes into account several factors, most notably the nature of the contravention, any history the respondent has with the ASA, possible harm done to consumers or competitors as a result of non-compliance.
The respondent, in its response to whether or not sanctions are appropriate, submitted an explanation as to how the breach might have occurred and felt that sanctions are not applicable and fair as it did not breach any agreement. It should be noted that the merits in this matter have been dealt with in the breach ruling and the relevant issue is whether or not the imposition of sanctions is appropriate.
The Directorate is therefore satisfied that sanctions are appropriate in the current matter. Given the respondent’s submission that the product has been discontinued a while ago, the Directorate is of the view that imposition of a sanction is not appropriate at this stage. Should the respondent wish to advertise the same product in the near future then the sanction in terms of Clause 14.2 of the Procedural Guide will apply to this specific Cellu-firm product only.
In terms of Clause 14.2 of the Procedural Guide, the respondent is ordered to submit the proposed amendment, original advertisement and the relevant ASA ruling to the ACA Advisory Service for pre-publication advice in the event that the product is marketed again.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it, and oversight although innocent, is not an automatic excuse. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide.