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Be-Trim / L De Weerdt / 8660

Ruling of the : ASA Directorate
In the matter between:
Louise De Weerdt Complainant(s)/Appellant(s)
BoundLessTrade 149 t/a Be-trim Respondent

15 Sep 2009

BACKGROUND
In Be-Trim / L De Weerdt/ 8660 (24 May 2007), the Directorate ruled that the advertisement claiming, inter alia, “20 Kilos in 3 Weke!!” (20 Kilos in 3 Weeks) and several personal references of people losing weight as a result of using this product, had to be withdrawn because the respondent did not submit substantiation for the relevant claims.

The respondent was instructed to withdraw the advertisement with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

On 17 October 2007, Mrs AM Compton, submitted that the advertisement was still being used despite the existing ASA ruling. The Directorate ruled that it appeared to be the result of human error. It also appeared to be an isolated incident, as no other breach allegations have been received.

SUBSEQUENT TO THIS RULING
On 14 August 2009 another complainant, Dr Harris Steinman, lodged a complaint regarding the respondent’s B-Trim weight loss product advertisement that appeared in the September 2009 issue of the MNET magazine, which makes a number of unsubstantiated weight loss claims.

The complainant argued that these claims cannot be adequately substantiated based on evidence-based proof and are therefore misleading to an average consumer.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
Given that the new complaint related to a similar advertisement as that previously considered, the Directorate investigated the complaint as a possible breach of the previous ruling.

Clause 14 (Sanctions) and Clause 15 (Enforcement of rulings) of the Procedural Guide were therefore taken into account.

RESPONSE
The respondent submitted that the highlighted statements will be modified to comply with the ASA directive with immediate effect. The respondent did not elaborate on the breach allegation even after it was given further opportunity to do so.

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

The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate.

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.

The original ruling stated, “The respondent submitted no documentation in terms of Clause 4.1 of Section II to verify that the advertised product, when used at the recommended dose, would deliver the claimed [weight loss] results”.

The current advertisement contains claims such as “12 Kilo’s in 10 Days!”; “Our Products … unique formulation … doesn’t only help with your weight loss, but also balances your metabolism … reduces your hunger …and makes your body firmer and leaner”. It also features some “Before” and “After” photographs to illustrate weight loss.

While the respondent has now undertaken to modify its advertisement, this action is belated. It appears to be common cause that a breach occurred as the advertisement still makes unsubstantiated weight loss claims despite express instructions not to.

The respondent did not give an explanation as to how the breach occurred and has not submitted any substantiation to show that its product is able to effect weight loss as claimed.

Given the above, it is clear that the respondent is in breach of the previous ruling and therefore in contravention of Clause 15 of the Procedural Guide.

In light of the above, the respondent is again instructed to:

  • Withdraw the current advertisement,

  • Ensure that the instruction to withdraw the advertisement is immediately actioned upon receipt of this ruling,

  • Ensure that the advertisement is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and

  • Ensure that the advertisement are never used again in that format unless new substantiation has been submitted to the Directorate, evaluated, and a new ruling issued.

In light of this breach, Dr Harris Steinman is afforded ten (10) working days to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide are appropriate, and if so, which sanctions. After this time, the respondent will be afforded an equal opportunity, after which the Directorate will proceed in terms of Clause 14.6 of the Procedural Guide.

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