Vigro – ASA breach ruling

Posted 28 October 2012

In May 2012 the Directorate ruled that advertising that appeared on Vigro’s website, www.vigrohair.co.za was unsubstantiated and in breach of Clause 4.1 of Section II of the Code. The advertising promoted the respondent’s “Vigro 3-step programme” as “… and effective long lasting solution for thinning hair”. To some extent, the ruling took issue with the fact that the product’s efficacy claims only apply to non-hereditary hair loss, a fact which was not clearly stipulated or conveyed to consumers.  On 12 September 2012 the complainant lodged a breach complaint against the respondent’s television commercial flighted on MNET. The ASA evaluated the complaint and Vigro’s response.

 

Vigro / HA Steinman / 19196
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
PSN Brands (Pty) Ltd Respondent

 

18 Oct 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6279

BACKGROUND 

In Vigro / H A Steinman / 19196 (16 May 2012) the Directorate ruled that advertising that appeared on the respondent’s website, www.vigrohair.co.za was unsubstantiated and in breach of Clause 4.1 of Section II of the Code.

The advertising promoted the respondent’s “Vigro 3-step programme” as “… and effective long lasting solution for thinning hair”. To some extent, the ruling took issue with the fact that the product’s efficacy claims only apply to non-hereditary hair loss, a fact which was not clearly stipulated or conveyed to consumers.

SUBSEQUENT TO THE RULING
On 12 September 2012 the complainant lodged a breach complaint against the respondent’s television commercial flighted on MNET. The complainant specifically referred to” a claim that ‘with Folliculosan, promotes new hair growth’ (or words to that effect …”

The complainant referred to the Directorates comment that it was “… not satisfied that it [was] made perfectly clear on the respondent’s website that this product would only (assuming that this were true) work on people who are not exhibiting signs of hereditary hair loss …” and argued that the claims made in the commercial, either implicitly stated or implied, suggest that Vigro is effective and this is inbreach of the ASA ruling dated 16 May 2012.

The complainant also mentioned that he is aware that Vigro have appealed this ruling, but as the appeal has not been ruled on yet, this is clearly in breach of the standing ruling.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

RESPONSE
Stefan Vos Marketing Regulation Advisers, on behalf of the respondent, submitted that the original ruling took issue with the fact that the advertising created an impression that the product was effective against “any type of hair loss”, and concluded that it was not “… made perfectly clear on the respondent’s website that this product would only (assuming that this were true) work on people who are not exhibiting signs of hereditary hair loss, [and] the Directorate is [therefore] not satisfied that the substantiation is adequate” .

It therefore clear that the ASA Directorate considered the acceptability of substantiation for any type of hair loss, and that the ASA Directorate, with its obiter dicta on the substantiation for non-hereditary or non-genetic hair loss (“assuming this were true” as opposed to ruling on such substantiation), did not consider the acceptability of substantiation for non-hereditary or non-genetic hair loss.

It explained that it submitted the current commercial to the ACA Advisory Service for review prior to flighting. The ACA interpreted the Directorate ruling as implicitly accepting substantiation for non-hereditary or non-genetic hair loss, and recommended minor changes to ensure that the public is informed of the fact that efficacy relates to non-hereditary hair loss. A copy of the opinion was attached.

The current claims (which are made in the context of non-genetic hair loss), are effectively new claims that were “… not previously considered in this context …”. Reference was made to Biobust / Dr HA Steinman / 3247 (14 September 2010).

There is clearly no intent to circumvent the ASA Directorate ruling in any way, as it used the formal channels available to it to ensure that its amended advertising is compliant with the ASA Directorate ruling as well as the ASA Code.

The new commercial, it started off with the reference to “abnormal” hair loss and later qualifies it as to mean “non-hereditary”. In accordance with the ACA Advisory Service’s recommendation, the word “abnormal” was replaced with “excessive hair loss”, and it added the on-screen disclaimer, “Recommended for non-genetic hair loss”.

The respondent also attached an opinion from Mr John Knowlton of Cosmetic Solutions to support its argument that it at all times acted with the intention to comply with the ASA Directorate ruling and ASA Code.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

At the outset the Directorate has to emphasise that the previous ruling should in no way be interpreted to mean that the substantiation was accepted insofar as “abnormal” or “non-hereditary” hair loss is concerned, as it merely points out that the substantiation submitted (relating to non-hereditary hair loss) and the claims made (relating to general hair loss) did not match. The ruling pertinently takes issue with the fact that the advertising at issue was not clearly informing readers that the claims made are only in relation to non-hereditary hair loss.

Notwithstanding the above, it should be noted that the Advertising Standards Committee (the ASC) in considering an appeal in this matter, ruled as follows:

“The Committee did not find it necessary to decide whether ingredients specific substantiation is sufficient as it was satisfied that the experts [sic] opinions covered product specific substantiation in so far as it relates to non genetic hair loss”.

Effectively, this means that the ASC accepted the respondent’s substantiation insofar as it relates to non-hereditary hair loss. It is noted that this ruling was issued on 3 October 2012, meaning that prior to this date, the respondent was still bound by the original Directorate ruling.

Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

The essential question before the Directorate is whether or not the respondent’s new commercial is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally complained of. Considering the wording of the original ruling, one key factor will be whether or not the context in the current commercial clarifies that the claim relates to “non-genetic hair loss”.

The new commercial features a hairdresser, explaining that her client “Michelle” told her about her “excessive hair loss”, causing anxiety. She explains that “… I recommended the Vigro three-step system …” At this point, the words “Recommended for non-genetic hair loss” appear in large, easily readable font on-screen for approximately three seconds. After explaining how the product works, the hairdresser states “Help stop non-genetic hair loss with the Vigro three-step system …”

The Directorate is satisfied that the new commercial makes it sufficiently clear that the efficacy claims are made in the context of non-genetic or non-hereditary hair loss. Unlike in the original ruling, the hypothetical “reasonable person” would not be misled into believing that this product would assist in all types of hair loss.

The Directorate is therefore of the view that the respondent is not in breach of the original ruling and therefore, not in contravention of Clause 15 of the Procedural Guide.

The breach complaint is dismissed.

 

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