In a ruling dated 8 April 2008, the ASA found the USN in breach of its earlier ruling dated 28 November 2006 in that USN did not submit adequate substantiation in terms of the Code for its “anti-cellulite” claims, but still continued making these claims on its website. The consumer and USN were afforded an opportunity to comment on whether or not sanctions were appropriate.
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
16 October 2008
In a ruling dated 8 April 2008, the Directorate found the respondent in breach of its earlier ruling dated 28 November 2006 in that the respondent did not submit adequate substantiation in terms of the Code for its “anti-cellulite” claims, but still continued making these claims on its 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, Clause 14 of the Procedural Guide (sanctions) was considered relevant.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant submitted, in essence, that the respondent has a history of numerous misleading products being reported to ASA. Time has been a constraint in preventing the complainant from laying a number of complaints for a great many other products. He further submitted that, although the ASA cannot rule against a product that has not been reported yet, sanctions should be sufficiently stringent to send a message to the respondent that further transgressions for this product, or any other products will not be tolerated.
COMMENTS FROM THE RESPONDENT
The respondent firstly submitted that it disputes the ruling dated 8 April 2008, finding it in breach of the previous ruling. It did not use the original advertising in its “current format”. It has always respected the rulings made by the ASA and has no intention to deliberately ignore ASA instructions. It submitted that it has since removed the entire write up of Cellu-firm from the website and had also decided to discontinue the product. It further stated that its failure to adhere to the ruling made by the ASA should not be seen as a deliberate attempt to undermine the authority of the ASA, but merely as a misinterpretation of the ruling made in November 2006 and no sanctions should be imposed.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties. The respondent disputed the breach ruling dated 8 April 2008. The respondent, however, lodged no appeal to that ruling, and did not indicate any disagreement. To do so now serves no purpose. Therefore, the Directorate cannot debate the accuracy of the 8 April 2008 ruling, and its decision stands. The only remaining issue is that of sanctions. 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, and possible harm done to consumers or competitors as a result of non-compliance.
The respondent submitted that it has since removed the entire write up of Cellu-firm from its website and discontinued the product. In terms of Clause 14.3 of the Procedural Guide, the Directorate can direct the respondent to submit all future advertising to the ACA (Association for Communication and Advertising) Advisory Service, at the cost of the respondent, prior to publication thereof. This sanction may be imposed if more than one adverse ruling has been made against the respondent in a period of 12 months, and it is normally imposed for a period of six months.
A preliminary search of ASA archives reveals that the respondent has had the following matters before the ASA in recent time: Voluntary undertakings USN 17 Testo-X / H A Steinman / 10726 (3 April 2008) USN Phedra- Cut XT / H A Steinman / 10318 (19 December 2007) Breach rulings USN Cellu-firm / H A Steinman / 5622 (8 April 2008) From the above, it is clear that in the 12 months period referred to in Clause 14.3 of the Procedural Guide, the respondent gave two voluntary undertakings and had one breach ruling go against it.
It is worth noting that all these matters involved an allegation that the respondent could not substantiate its claims. Clause 14 of the Procedural Guide states, inter alia, “In considering whether a sanction should be imposed, or for calculating the number of adverse rulings, voluntary undertakings on the part of the respondent to withdraw or amend an advertisement will also be taken into account”.
The Directorate is therefore entitled to impose a sanction in terms of Clause 14.3 of the Procedural Guide. The Directorate accordingly imposes a sanction in terms of Clause 14.3 of the Procedural Guide, directing the respondent to submit all its future advertising to the ACA Advisory Service, at the cost of the respondent, prior to publication thereof.
This sanction is imposed for a period of six months, however, the sanction is suspended for a period of six months from the date of this ruling. Should the respondent’s advertising be ruled against during the suspended period, the above sanction will automatically apply along with any other sanction the ASA might deem appropriate at the time.