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Groupon Scio / L Stander / 19601

Ruling of the : ASA Directorate
In the matter between:
LJ Stander Complainant(s)/Appellant(s)
Twangoo South Africa (Pty) Ltd t/a Groupon South Africa Lindsay Gracie t/a Lifeflow Respondent

16 Jan 2013

Mr Stander lodged a consumer complaint against an electronic newsletter emailed to him by Groupon during 2012, which promotes a “SCIO full-body scan” from “LifeFlow” at a 75% saving.

The advertisement claims that a SCIO body scan, inter alia, does as follows:

  • “Scans the body like a virus scan, picking up allergies, weakness, viruses, nutritional deficiencies and all imbalances”
  • “Reveals physical ailments as well as state of mental and emotional health, relates health to emotion and chemical imbalance”
  • “Detect and rectify body imbalances”
  • Non-invasive and drug-1free”

It further explains that:

“While your body may feel as fit as a weight-lifting fiddle, there’s always a chance that your body isn’t telling you everything. An effective and innovative computerised body scanning system, the SCIO or Scientific Conscious Operating System works like a computer anti-virus scan. Transmitting millions of mini electro-magnetic signals through your body, the pulses actively pick up on anything that appears odd or out of balance; identifying general misbehaviour or menacing illness quicker than you can say ‘cured’.

Picking up allergies, weakness, viruses, deficiencies, food sensitivities and all those terrifying toxins; the all-knowing Oracle of body scans can reveal anything from subtle energy imbalances to the state of your mental and emotional health. Promoting the body’s natural ability to self-heal while encouraging cellular balance and a natural detox; this seemingly supernatural treatment has no reported side-effects – except for a renewed sense of energy and relaxation”.

COMPLAINT
The complainant quoted the above section, and stated that “These claims are, in my opinion, unsubstantiated and in breach of Appendix F”.

He then provided two URLs with “… information on the SCIO device, the one at Quackwatch and the other investigative journalists’ article in the Seattle Times”.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complainant’s submissions, the Directorate considered the following provisions of the Code as relevant:

• Section II, Clause 4.1 (Substantiation)

• Appendix F (References to diseases in advertising)

RESPONSES
The first respondent effectively argued that it is merely a facilitator of transactions between a provider of product or services, and as such, reaches an agreement with all such providers to ensure that the information supplied to Groupon for advertising is accurate and true. In this capacity, it is similar to a retailer, meaning that it is not the correct respondent and cannot be held accountable for any incorrect advertisements.

The second respondent pointed out that the agreement reached with the first respondent involves the acceptance that the first respondent “…will promote your [i.e. an advertiser’s] services by creating a description … You agree that we will be allowed to write this description and you confirm that you understand that we will not collaborate with [an advertiser] in finalising the description before it is posted on the website.

Insofar as the merits are concerned, the second respondent argued that the information contained on the URLs provided by the complainant are merely a matter of opinion. Unless the complainant has personally had a negative experience, there can be no substance to the complaint.

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

There are a number of preliminary issues that warrant clarity, for example the question of whether or not the first respondent could appropriately be regarded as an “advertiser” (see Ozone Health Studio / S Crookson / 19682 (3 October 2012), where the Advertising Standards Committee (the ASC) effectively found that this was reasonable). In addition, it is noted that the second respondent offered absolutely no documentary evidence of the efficacy claims. Furthermore, it should be noted that Appendix F was removed from the ASA Code subsequent to receiving this complaint, meaning that the ASA is no longer able to enforce it or consider complaints based on this appendix.

However, because of the nature of the complaint, the Directorate does not need to dwell on these issues.

Clause 3 of the Procedural Guide explains what is required for a complaint to be “valid” and capable of proper investigation. It reads, inter alia, as follows:

“3.1.1 The complaint must be in writing.

3.1.2 The identity and contact details of the complainant(s) must be disclosed to the ASA. When lodging a consumer complaint, the identity or passport numbers of the complainant(s) must also be disclosed.

3.1.3 The GROUNDS ON WHICH THE COMPLAINT IS BASED MUST BE CLEARLY STATED …”

While the complainant has complained in writing, disclosed his contact details and ID number, and provided a copy of the offending advertising, he has not articulated the basis on which he believes that the respondent has contravened the provisions of Clause 4.1 of Section II of the Code, or Appendix F for that matter.

What complicates things even more, is the fact that the advertisement contested does not only comprise of one efficacy claim, but many. It contains the following claims:

  • “Scans the body like a virus scan, picking up allergies, weakness, viruses, nutritional deficiencies and all imbalances”;

  • “Reveals physical ailments as well as state of mental and emotional health, relates health to emotion and chemical imbalance”;

  • “Detect and rectify body imbalances”;

  • “Non-invasive and drug-1free”;

  • “While your body may feel as fit as a weight-lifting fiddle, there’s always a chance that your body isn’t telling you everything. An effective and innovative computerised body scanning system, the SCIO or Scientific Conscious Operating System works like a computer anti-virus scan. Transmitting millions of mini electro-magnetic signals through your body, the pulses actively pick up on anything that appears odd or out of balance; identifying general misbehaviour or menacing illness quicker than you can say ‘cured’;

  • Picking up allergies, weakness, viruses, deficiencies, food sensitivities and all those terrifying toxins; the all-knowing Oracle of body scans can reveal anything from subtle energy imbalances to the state of your mental and emotional health. Promoting the body’s natural ability to self-heal while encouraging cellular balance and a natural detox; this seemingly supernatural treatment has no reported side-effects – except for a renewed sense of energy and relaxation”.

The complainant does not pinpoint which aspect he is contesting, or explain (if this is indeed the case), why he believes all the above issues are problematic. He merely states that “These claims are, in my opinion, unsubstantiated and in breach of Appendix F”.

While the Directorate accepts that the complainant provided two URLs with more information, he did not relate this information to his complaint, or explain which portions thereof apply to which claims. The online material explains the origins of the device, how it is purported to operate, and what the authors’ views were. There is, however, nothing from the complainant relating this to his specific concerns, the Code, or the advertisement.

This is improper, and for this reason alone, the complaint must fail (See Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010), for detailed explanation of why the grounds are essential to any dispute).

Given the requirements for clear and concise grounds in the Code, and in keeping with the approach followed in the Nature’s Choice ruling referred to above, the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand.

It is specifically noted, however, that this has no bearing on whether or not the device or treatment is capable of delivering on the claims, and the Directorate specifically did not consider this aspect of the complaint at this time.

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