INDEPENDENT NEWS

New Decisions: Competitor Complaint, Vaping Claims

Published: Tue 5 Nov 2019 02:19 PM
New Decisions Released
The following decisions have been released to the ASA website:
• Complaint19/206 Appeal 19/007 5G Free New Zealand, Print, Not Upheld, Appeal Allowed
• Complaint19/247 AWAP 19/002 John Appleton Associates, Out of Home, Digital Marketing and Television, Settled in Part and Upheld in Part
• Complaint19/261 Appeal 19/006 NZ National Party, Digital Marketing, Appeal Declined
• Complaint19/262 Appeal 19/009 Nestle, Uncle Toby’s, Television, Appeal Declined, Complaint Not Upheld
• Complaint19/296 Unilever Australasia, Streets, Out of Home, Upheld
• Complaint19/298 Goldengrove Stud Farm Magazine, Upheld in part. Settled in part, Not Upheld in part
• Complaint19/302 GlaxoSmithKline, Bexsero, Television, Not Upheld
• Complaint19/305 Imperial Brands, Television, Upheld in part
• Complaint19/309 Mercedes Benz New Zealand, Digital Marketing, Upheld
• Complaint19/312 Volkswagen NZ, Television, No Grounds to Proceed
• Complaint19/314 New Zealand National Party, Digital Marketing, No Grounds to Proceed
• Complaint19/324 Nick Smith MP, Print, Not Upheld
• Complaint19/331 Debras Skin Care, Digital Marketing, Settled
• Complaint19/335 New Zealand National Party, Brochure, Upheld in part
• Complaint19/340 4Ocean, Television, No Grounds to Proceed
• Complaint19/342 NZ Smokefree Tomorrow, Radio, Not Upheld
• Complaint19/344 New Zealand National Party, Digital Marketing, Not Upheld
• Complaint19/350 Vodafone, Television, No Grounds to Proceed
• Complaint19/352 Roadshow Films, Television, Not Upheld
• Complaint19/353 Sodastream, Television, Upheld
• Complaint19/362 Fluoride Free NZ, Print, No Grounds to Proceed
• Complaint19/364 Brand Developers, Television, Settled
• Complaint19/365 Vodafone, Television, No Grounds to Proceed
• Complaint19/368 Scapegrace Gin, Out of Home, Settled
• Complaint19/373 NZ National Party, Digital Marketing, Withdrawn
• Complaint19/374 Allied Press, Print, No Grounds to Proceed
• Complaint19/376 Hanesbrand, Jockey, Out of Home, No Grounds to Proceed
• Complaint19/377 Tomorrows World, Television, No Grounds to Proceed
• Complaint19/383 Reckitt Benckiser, Pine O Clean, Television, No Grounds to Proceed
• Complaint19/391 Voice for Life, Billboard, No Grounds to Proceed
• Complaint19/393 New Zealand Racing Board, TAB, Television, No Grounds to Proceed
• Complaint19/400 West Auckland Licensing Trusts Action Group, Unaddressed Mail, No Grounds to Proceed
Panel Makes Ruling on Competitor Complaint
A complaint was made by AFT Pharmaceuticals Ltd about six advertisements for Lypo-Spheric Vitamin C, a product distributed by John Appleton Associates Ltd. The advertisements included statements referencing books and medical studies, and quotes from a “Dr Thomas Levy, Cardiologist”.  One of the ads said “Be aware of imitations – there is only one Lypo-Spheric Vitamin C”. The Chair ruled to deal with the matter by “adjudication with attendance of the parties” (AWAP). This system is designed toresolve disputes between competitors, and a Panel was appointed.
The Complainant said their main concerns relate to the use of a healthcare professional to endorse the product and the lack of confirmation about whether the advertisements had received the appropriateTAPS approval. The Complainant said if the Code prohibits New Zealand registered healthcare professionals from promoting natural health products then, according to the intent of the Code, this restriction should also apply to a doctor who is registered in America.
The Advertiser proposed a number of solutions to settle some aspects of the complaint. These included removing references to health professionals and removing problematic links on their website. They also said they would ensure all versions of advertisements that include Dr Levy’s endorsement would receive TAPS approval. The Advertiser said they did not accept the website radio advertisement breaches the Code because Dr Levy, being an American cardiologist, falls outside the definition of healthcare professional for the purposes of the Code. The Advertiser also said they do not accept the statement on the TV ad “Be aware of imitations – there is only one Lypo-Spheric Vitamin C” breaches the Code and noted the advertisement has TAPS approval.
The Panel ruled most aspects of the complaint were settled due to the advertiser’s willingness to make changes to the advertisements. However, the Panel ruled unanimously that the complaint about the website radio advertisement was Upheld.  This is because the likely consumer takeout was that a healthcare professional was endorsing the product and the use of a healthcare professional endorsement did not comply with the Code. The Panel also ruled by majority that the complaint about the television advertisement was Upheld.  A majority of the Panel agreed it was misleading to suggest other products were inferior imitations. Accordingly,the complaint was Settled in part and Upheld in part.
Vaping Ad Misleading
The television advertisement for myblu Vape Device introduces three different people who use myblu Vape Device, each for different reasons: savings, appearance and fitness. The script includes the following: “My Savings - $60 last week – more than we made on tips… My Appearance – Not bad. Hey, that’s not my good side…My Fitness – Keep up bro.” The advertisement ends with the line: “My Freedom – myblu. Vape with confidence.” The advertisement contains the following disclaimer which appears across the bottom of the screen throughout the advertisement: "R18+ This product is for adults over the age of 18. The actors featured in this advertisement represent former smokers who have transitioned to vaping".
There were six complaints about this advertisement. Complainants said the ad was misleading because it implied vaping products are healthy and vaping doesn't have any negative health impacts. Other concerns included the lack of health warnings, that the ad could manipulate young and impressionable people and the claims the device helps people to save money, look nicer, and keep fit.
The Advertiser said they wish to defend all the claims raised in the Complaint. They said the advertisement is not currently being broadcast and it has no plans for further placement of the advertisement.
The Complaints Board said the consumer takeout of the advertisement was if you vape instead of smoking you will save money, look good and be fitter. A majority of the Complaints Board the advertisement did not meet the threshold to be misleading,  However, it said the advertisement did not observe a high standard of social responsibility because the ad implies that vaping is a safe activity. The majority said that while the studies referred to by the Advertiser support the view that vaping is less harmful than smoking, they do not support the view that there are no risks at all associated with vaping. Accordingly,the Complaints Board ruled the complaint was Upheld in part.

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