Canderel / P Hammann / 4426
Ruling of the : ASA Directorate
In the matter between:
Paul Hammann	Complainant(s)/Appellant(s)
Merisant SA (Pty) Ltd t/a Canderel	Respondent

14 Dec 2006

Mr Hammann lodged a consumer complaint against the claims “Tastes just like sugar” and “no aftertaste” in Canderel advertising.

The complainant submitted a copy of the packaging.

COMPLAINT
In essence, the complainant submitted that the claims “Tastes just like sugar” and “no aftertaste” are untrue in his personal experience.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:

• Section II, Clause 4.1 – Substantiation

• Section II, Clause 4.2.1 – Misleading claims

RESPONSE
The respondent submitted substantial documentation in support of these claims, but subsequently submitted that it will be withdrawing the claims on a global scale in 2007.

In light of the logistical and administrative consequences this would have, the respondent requested an extension on the normal deadline imposed for packaging withdrawal. The respondent requested that it be afforded 8 months to complete this process.

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

The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking is accepted without considering the merits of the matter.

Under normal circumstances, the respondent’s undertaking would be accepted without any further consideration. However, Clause 15.3 of the Procedural Guide specifies a general deadline of 3 months for the withdrawal of packaging. It reads, “Packaging – three months or as determined otherwise by the ASA.

In light of the respondent’s request, the complainant was afforded an opportunity to comment on whether he would be apposed to an extension being granted. In essence, the complainant was not amenable to this request, and stated that many people will still purchase the product over the next eight months under the false expectation that it tastes like sugar.

The Directorate is therefore tasked with determining whether, under the circumstances, an extension of the regular deadline is warranted.

In deciding on this matter, it is important to acknowledge that the respondent has complied with all requests from the ASA to submit additional verification, and even to have the verification re-evaluated, at its own cost, in terms of Clause 4.1 of the Code. This illustrates a bona fide attempt to satisfy the requirements of the ASA and the Code.

However, the complainant has a valid concern, and it is worth noting that this complaint was lodged with the ASA in January 2006, but as a result of various extenuating circumstances, has not reached resolution to date.

The Directorate recognises that amending advertising and particularly packaging on a global scale is a massive undertaking, and to expect the respondent to complete this within three months verges on unreasonable.

Having said that, it must be emphasised that the “withdrawal” of packaging referred to in the Code relates primarily to control. In essence, the respondent is not required to physically withdraw stock already in the trade, and sold to third parties. The respondent should merely stop disseminating any new stock within the deadline stipulated. Stock that is already in trade will naturally be sold out over time. This conceivably removes some pressure from the respondent, and entails a less ambitious undertaking.

Having regard for the nature of this complaint, the submissions from both parties as well as the complexity of the matter, the Directorate, at its discretion afforded to it in Clause 15.3.7 of the Procedural Guide, grants the respondent an extension of two additional months.

Accordingly, the respondent’s undertaking to withdraw the claims “Tastes just like sugar” and “no aftertaste” is accepted on condition that the claims are withdrawn within immediate effect within the next five months as far as packaging is concerned. This deadline starts running on the date of receipt of this ruling.

With regards to other media, the limitations and deadlines stipulated in Clause 15.3 of the Procedural Guide still apply.