ASA Adjudication on Goldshield Ltd
12-16 Addiscombe Road
16 September 2009
Health and beauty
Number of complaints:
A TV ad for LIPObind, a slimming aid. The ad featured a man and a woman smiling and laughing in the back of a taxi. The ad showed the taxi pulling up at a house and the man and the woman laughing and giggling together at the front door. The woman made a hushing gesture at the man. The woman began to pull out some door keys but, as she did so, a box featuring the product name “LIPObind” poked out at the top of her bag. The box was prominently displayed poking out of the bag as the woman opened the door.
The man walked into a living room and, in the background, the woman ran up the stairs and smiled flirtatiously at him. The man sat back contentedly on the sofa.
The woman, looking at herself in a full-size mirror, ran her hand over her buttocks and then smiled at herself in the mirror. She bent down to pick a toy fish off the floor. The ad cut to a picture of the woman and the man in a family snapshot and one of the woman and a child. The woman smiled at herself in a mirror on a cabinet door, which she opened. She took the box of LIPObind out of her bag and placed it on a shelf in the cabinet. A close-up of the box stated “LIPObind - Find your true form. CERTIFIED MEDICAL DEVICE”. A strip at the bottom of the screen indicated that the product could be bought at Boots, Holland & Barrett, Sainsbury’s and Superdrug. The ad finished with a shot of the woman closing the cabinet door, looking at herself in the cabinet mirror and pushing her hair behind her ears. On-screen text stated “Just me”.
Monitoring staff challenged whether:
1. the ad implied LIPObind would help with weight loss;
2. the broadcaster had obtained suitably qualified independent medical advice on the efficacy of LIPObind.
BCAP TV Code
Clearcast explained that it considered the ad was acceptable for broadcast because it advertised the product on an availability-only basis.
Clearcast believed that viewers would be unlikely to attribute the prefix "LIPO" to mean a weight management product. Clearcast said that the reference to "find your true form" might just as easily be associated with a product designed to assist the digestive transit of food than a weight management product. It added that it did not breach BCAP TV Code Rule 8.4.2 because nothing in the advertisement explained what the product did and so the rule did not apply.
Goldshield explained that LIPObind was another way of saying "fat binding" which was permitted under the terms of their Class IIa licence. There was nothing to suggest that the products name had anything to do with "Liposuction". Goldshield added that if the ASA Council decided to ban the use of the word "LIPObind" then it believed the ASA would be restricting the products labelling and packaging, which was allowed under the terms of LIPObinds registration as a medical device.
Goldshield said LIPObind was a certified Class IIa Medical Device. It explained that the Medical Device Directive's objective was to allow the unfettered sale of IIa Medical Devices across the EU. Goldshield said LIPObind was CE-marked with an accompanying conformity assessment certificate and that demonstrated that the product was proven to work properly to the standard required for it to be made available to the public under UK and EU law. It believed that, if the ASA were to restrict the advertising of LIPObind on TV that would be inconsistent with the Directive's objectives.
Goldshield explained that the actresss actions of rubbing her bottom and hips merely signified that she was content with her present weight. It believed that the action was entirely consistent with the weight management function of LIPObind rather than a weight loss claim. It said that "find your true form" was a classic piece of advertising puffery, which carried no specific meaning. It added that some women weighed the same in their 40s as they had in their 20s thanks to their metabolism. Others might gain weight but who was to say what a womans "true form" was?
Goldshield stated that it believed that the requirement of rule 8.4.2 was for advertisers to be able to substantiate claims in ads for slimming products but, if no claims were made, the rule did not apply. It believed that, because it did not make a claim, the advertisement did not breach the rule.
The ASA acknowledged that LIPObind is a certified Class IIa Medical Device but noted the Directive required merely that "Member States shall not create any obstacle to the placing on the market or the putting into service within their territory of devices bearing the CE marking". We considered that that permitted LIPObind to be imported, exported, labelled and packaged and made available for sale. We noted the Directive did not refer to advertising. We considered, moreover, that the broadcaster must comply with the BCAP TV Code.
We considered the ad implied the woman had lost weight as demonstrated by the woman rubbing her bottom and hips and looking at herself in the mirror. We noted the close-up of the pack which stated "find your true form". We considered that that phrase could reasonably be interpreted to refer to weight loss and, in conjunction with the images, strongly implied that the woman had lost weight.
The name of a product or service may in itself be regarded as a claim. We noted the product name LIPObind included and placed emphasis on the prefix lipo. We noted that that prefix formed part of the term liposuction, a term commonly understood to describe a type of weight loss surgery. We considered that viewers who were concerned about their weight would be likely to associate the term lipo with referring to or being synonymous with fat. We considered, therefore, that the product name LIPObind could reasonably be assumed to have weight-loss properties or fall within the character of weight loss products. We noted that the Notes to rule 5.2.1 (Evidence) advised that a claim could be implied or direct, written, spoken or visual and that the name of a product or service may in itself be regarded as a claim.
We concluded that the ad made several weight loss claims and understood that the non-broadcast Council of the ASA had separately concluded that there was inadequate evidence to substantiate those claims. Because the advertisers did not submit any new evidence to substantiate the weight loss claims we concluded that the ad was misleading.
The ad breached CAP (Broadcast) TV Advertising Standards Code rule 5.1.1 (Misleading advertising) and 5.2.1 (Evidence).
We noted that 8.4.2 required broadcasters of ads for slimming regimes, weight-control products or services to obtain suitably qualified medical advice on product efficacy. We concluded that, because the advertiser had not provided, and the broadcaster had not obtained, suitably qualified medical advice on the efficacy of LIPObind, the advertisement breached the Code.
The ad breached CAP (Broadcast) TV Advertising Standards Code rule 8.4.2 (Requirement for Medical Advice).
The ad must not be broadcast again without adequate independent medical advice on the efficacy of LIPObind.
Adjudication of the ASA Council (Broadcast)