USN Phedra-Cut Lipo XT / MM Davy / 20382
Ruling of the :
|In the matter between:
Miss Michelle M Davy
Ultimate Sports Nutrition (Pty) Ltd
26 Jul 2012
Miss Michelle Davy lodged a consumer complaint against a USN advertisement which appeared on the website www.kfm.co.za promoting the “USN 12 week challenge”.
The advertising presents the competition where entrants choose their preferred winner from a list of seven contestants that took part in the 12 week challenge. The advertising also includes a comparison of the contestants’ weight and body fat percentages from the start to the end of their 12 week course. The product promoted for the purposes of this challenge is “PHEDRA-CUT LIPO XT”.
In essence, the complainant submitted that the contestants’ initial body fat percentages appear to be within normal ranges. However, the end body fat percentages are not comparable to the given appearance, is unhealthy (because it is below the levels of essential body fat percentages) and unrealistic and physiologically unattainable. The advertising is false with regards to the alleged body fat percentages attained at the end of the challenge, and is glamorising life threateningly low body fat percentages, and implies that the product can help an individual achieve physiologically impossible body fat percentages.
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
• Section II, Clause 13 – Safety
The respondent initially requested an extension to reply to the complaint, but ultimately submitted that the advertising has been withdrawn. It confirmed that it would “... comply with all current applicable legislation as far as advertising rules are concerned”.
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. This is, however, a discretionary decision.
The respondent submitted that the advertising has been withdrawn. In addition, it undertook to comply with all current applicable legislation as far as advertising rules are concerned.
While the Directorate is aware that this would potentially address this specific complaint, it cannot ignore the fact that the respondent appears to have a tendency to offer such undertakings when confronted with complaints.
In the past nine years, at least twenty four rulings have been issued where USN was a respondent. Save for those that dealt with issues of compliance, the majority related to allegations that the Code’s provisions on substantiation (Clause 4.1 of Section II) and misleading claims (Clause 4.2.1 of Section II) had been breached. It is therefore safe to say that the respondent has had more than one encounter with the ASA and the provisions of the Code, and could therefore not claim ignorance insofar as the requirements in terms of substantiation are concerned.
In addition, and perhaps more to the point, the Directorate has dealt with the respondent’s Phedra-Cut products on more than one occasion:
In USN / De Castro Ramos & Others / 875 (17 June 2005), part of the complaint related to the respondent’s “Phedra-Cut” product. When taken to task by the complainants, the respondent provided an undertaking to remove the efficacy claims associated with the product pending substantiation. At this time the Directorate accepted this undertaking.
In USN Phedra-Cut / Dr Steinman (3 November 2006), the respondent again undertook to amend the claims to ensure that they do not mislead people. This was accepted at the discretion of the ASA.
In USN Phedra-Cut Accelerator / H A Steinman / 9069 (5 June 2007), the respondent advised that the Phedra-Cut Accelerator product had been discontinued and that no further advertising would appear. The Directorate accepted this as an adequate resolution.
In USN Phedra-Cut Stimulant free / H A Steinman / 9070 (5 June 2007), the respondent’s efficacy claims were again taken to task, and again the respondent confirmed that it would remove and/or change the relevant claims. Here too the Directorate accepted the undertaking.
In USN Phedra-Cut XT / H A Steinman / 10318 (19 December 2007), the respondent again undertook to withdraw its efficacy claims, and the Directorate accepted this, but drew specific attention to the fact that “simply undertaking to withdraw advertising each time a complaint is received is not a sufficient resolution”. The Directorate specifically noted as follows:
“... the respondent has previously given similar undertakings on what appears to be similar products (refer USN Phedra-Cut Stimulant Free / HA Steinman / 9070 (5 June 2007) and USN Phedra-Cut Accelerator / HA Steinman / 9069 (5 June 2007) for example). The respondent is cautioned that simply undertaking to withdraw advertising each time a complaint is received is not a sufficient resolution”.
Subsequent to this, in a ruling referenced USN Phedra-Cut Stimulant Free / HA Steinman / 9070 (8 April 2008), the respondent was found to have breached the earlier ruling in that the efficacy claims still appeared on its website.
The significance of the above explanation is that all prior disputes, including the current matter, relate to the Phedra-Cut range of products, and in each instance the efficacy claims related to fat burning and weight loss. Additionally, each dispute resulted in a voluntary undertaking to remove or amend the advertising at issue.
In Homemark Pure Magic Spa / HA Steinman / 13961 (19 November 2009), the Advertising Standards Committee (the ASC) considered whether or not another in a string of such undertakings was sufficient for the purpose of the dispute at hand (which also related, inter alia, to the question of substantiation). It imposed a sanction on the advertiser, noting as follows:
“The Committee considered the history of undertakings given by the Respondent as set out in the papers, as well as the number of adverse rulings against the Respondent and was of the view that, given that history as well as the Respondents explanation of its business model, the repeated giving of undertakings was unacceptable. In terms of Clause 4.1.1 of Section II of the Code, marketers should have in their possession acceptable independent evidence to substantiate claims prior to launching the product. Trying to bypass this by using voluntary undertakings is unacceptable”.
Similarly, in Shoprite Checkers / Pick n Pay / 17772 (17 February 2012), the Advertising Industry Tribunal (The AIT) imposed a sanction on Pick ‘n Pay despite its undertaking to remove the advertising at issue.
It appears from the above history that the respondent has used, and arguably abused the ASA’s leniency insofar as accepting voluntary undertakings is concerned. However, given that the complaint again relates to, inter alia, the question of substantiation, and given that it again relates to the respondent’s Phedra-Cut product range, the Directorate is not satisfied that yet another undertaking is adequate.
Accordingly, the complaint is not disposed of simply by virtue of this undertaking to remove the advertising and ensure that “... all current applicable legislation as far as advertising rules are concerned” are abided by.
This necessitates a consideration of the merits insofar as the validity of the respondent’s claims is concerned. In this regard, the respondent did not submit any form of evidence to suggest that the information conveyed in the advertising was factual and accurate.
As such, the advertising that gave rise to this dispute is found to be in contravention of Clause 4.1 of Section II of the Code. By virtue of this, it would likely have misled people in a manner that contravenes the provisions of Clause 4.2.1 of Section II of the Code.
Given that the advertising has since been removed, the Directorate does not need to issue such an instruction to the respondent at this time. However, the respondent is strongly cautioned to ensure that all its future advertising (not only for this product) complies with the provisions of Clause 4.1 of Section II of the Code, as well as any other relevant portions of the Code.
While no sanctions were called for, and while the Directorate accepts that this is the first adverse ruling against the respondent in recent times, the respondent is reminded that Clause 14 of the Procedural Guide empowers the Directorate to consider voluntary undertakings in calculating which sanctions should be imposed. The Directorate will not take future contraventions of the Code or of previous rulings lightly.
The complaint is upheld.