Bioslim Once a Day / Dr HA Steinman / 1806
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman	Complainant(s)/Appellant(s)
Glomail - A division of Limited Editions (Pty) Ltd	Respondent

21 Jun 2006

BACKGROUND
In Bioslim Once A Day / Dr HA Steinman / 1806 (25 October 2005) the Advertising Standards Committee (the ASC) dismissed an appeal by the complainant and ruled that the respondent provided sufficient substantiation in terms of Clause 4.1 of Section II of the weight loss claims made for this product.

In Bioslim Once A Day / Dr HA Steinman / 1806 (17 February 2006) the Directorate ruled that the complainant’s request for arbitration could not be granted at this time, as it was not correctly communicated to the ASA within the deadlines stipulated in the Code.

This ruling informed the parties that the complainant has the right to apply for condonation of late filing of the request for arbitration.

SUBSEQUENT TO THE RULING
The complainant submitted arguments on why his late request for arbitration should be condoned. The complainant’s submissions will be dealt with more fully below.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 16 of the Procedural Guide (Arbitration) was considered relevant.

RESPONSE
Attorneys Adams & Adams, on behalf of the respondent submitted that the Directorate does not have the powers to condone the complainant’s request, as Clause 16 of the Procedural Guide does not expressly provide for such action.

The respondent’ submissions will be dealt with more fully below.

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

The Directorate is tasked with determining whether or not the complainant’s request for condonation of his late request for arbitration may be considered, and if so, whether or not it should be granted.

Can the request be considered?

The complainant submitted that his request for arbitration was hampered by, inter alia, a delay in obtaining the relevant information to enable him to do so, other pressing professional priorities and a lack of intricate knowledge of the Code.

The respondent submitted that Clause 16 of the Procedural Guide does not grant the ASA power to consider condonation for a late request of arbitration. Accordingly, the complainant’s request cannot be considered or granted by the ASA. Furthermore, notwithstanding this, the fact that the complainant is not experienced in the Code and was too busy to formulate his request does not justify condonation.

Clause 16 of the Procedural Guide sets out the process relating to arbitration. In all aspects, it stipulates that the primary duty for appointing an arbitrator and facilitating the process of arbitration rests with the ASA.

In determining whether the ASA, and particularly the Directorate may consider the condonation requested, it is important to establish the duties and powers of the Directorate.

Clause 6 of the Preface states, “The Code is administered by the Directorate and ASA Committees…Powers are vested in the Directorate and ASA Committees”.

Clause 8 of the Preface states, “The interpretation of the Code is vested in the Directorate and ASA Committees”.

Furthermore, Clause 14 of the Preface states, inter alia, “ASA procedures are designed to assist any person who wishes to complaint about an advertisement…The procedures are designed to grant all concerned a fair opportunity to be heard without fear of bias”.

From the above, it is clear that the Code is designed and intended to assist a complainant with valid concerns in having those concerns addressed via the ASA. In addition, it is apparent that the duty of performing all reasonable acts in addressing such concerns lies explicitly with the Directorate and ASA Committees.

Clause 8 of the Procedural Guide clarifies the role of the Directorate in regard to contraventions of the Code. Clause 8.1 of the Procedural Guide stipulates that “The Directorate shall have the primary responsibility for ensuring compliance with the Code”.

In addition, Clause 8.14 of the Procedural Guide reads as follows:

“The Directorate may perform all such acts and do all such things as are reasonable and necessary for or ancillary, incidental, or supplementary to the performance of any of its functions but will not extend to the suspension of rulings. Should circumstances arise where good and valid reasons justify a departure from usual procedure, these will be taken into account, but always at the discretion of the Directorate” (our emphasis).

From this, it is clear that the Directorate has the primary task of administering a valid complaint and may, if reasonably justifiable, perform ancillary tasks when doing so. The complainant has requested condonation for his late filing of his request for arbitration. Given the above, and given that a request for arbitration is congruent to a normal complaint, the Directorate has the duty and jurisdiction to consider the request.

The only alternative interpretation is that in terms of Clause 16.3.3, which gives the arbitrator the power to determine the procedure of the arbitration, the arbitrator must make the decision. An arbitrator can not, however, be appointed before a request for arbitration has successfully been lodged. It is noted in this regard that the process of selecting an arbitrator has historically been time consuming and therefore costly. To argue that this process must be completed prior to the condonation being considered is contrary to the spirit of the Code.

Therefore the only reasonable interpretation of the Code is that the Directorate can grant condonation.

In light of the above, the Directorate is satisfied that it may consider the request for condonation, by the power vested in it by the Code.

Should the request be granted?

Clause 16 of the Procedural Guide allows for a request for arbitration provided that the following conditions are met:

1) The request has to be submitted within 20 days of receipt of a ruling accepting the advertiser’s substantiating documents; and

2) The request has to be accompanied by documentation in accordance with Clause 4.1 of Section II that either disproves the claims objected to, or illustrates inadequacies as to the validity of the research commissioned by the advertiser.

In Bioslim Once a Day / Dr HA Steinman / 1806 (25 October 2006) the Advertising Standards Committee (the ASC) ruled that the respondent provided sufficient substantiation in terms of Clause 4.1 of Section II of the weight loss claims made for this product.

Effectively, this allowed the complainant until 22 November 2006 to submit its request for arbitration.

In a letter dated 4 November 2006 the complainant wrote, “I do not agree with the substantiation for Bioslim Once a Day…I therefore challenge the substantiation for this product and request arbitration”.

At this time, the Directorate advised the complainant that this request did not meet the requirements of Clause 16 of the Procedural Guide. Correspondence clarifying the requirements of this clause was entered into between the complainant and the ASA, and on 2 December 2006, only eight days after the time prescribed in Clause 16 of the Procedural Guide had lapsed, the complainant submitted documentation in accordance with the requirements of Clause 16 of the Procedural Guide requesting arbitration.

It is worth noting that the complainant submitted substantiation that complies with Clause 4.1 of Section II of the Code to support his argument. Accordingly, the complainant has a reasonable prospect of success in the matter, and it would not be reasonable to deny his request in light of this.

Finally, Clause 3.1 of Section II of the Code reads, “This Code is to be applied in the spirit, as well as in the letter”. It cannot, within reason, be argued that the Code intended for a complainant to be completely denied the right to request arbitration, should the stipulated deadlines not be met in reasonable circumstances.

The Directorate is therefore satisfied that no reasons exist why condonation should not be granted and that good and valid reasons do exist to justify the derogation from the ordinary timelines.

Given the above, the Directorate, at its discretion, grants the complainant’s request for condonation.

Accordingly, this matter will proceed in terms of Clause 16 of the Procedural Guide.