Download decision - New Zealand Advertising Standards Authority

11/324
DECISION
Meeting 9 August 2011
Complaint 11/324
Complainant: P. D’Ath
Advertisement: Brand Developers Limited
Complaint: The television advertisement (BD180ACP21T2) for the Ab Circle Pro V2
System featured, amongst other things, a voice-over that said: “Are you struggling to
lose weight?” Want to transform your body in record time.” This was accompanied
by a person grabbing their fat and a man using the Ab Circle Pro V2 System with a
simulated image of his body being reduced in size and becoming toned with the
accompanying on-screen text which read “simulation” and “Reshape body fast”. The
voice-over continued “Nass car driver Brendan Gaughan did he lost forty pounds”
and it showed before and after shots of Brendan with the on-screen text that read:
“Results not typical. The complete Ab Circle Pro System includes a reduced calorie
diet and regular aerobic exercise”. The voice-over continued by saying “Olympic
swimmer Amanda Ver did she lost 45 pounds” and it showed a before and after shot
of Amanda with the same disclaimer as shown for Brendan. The voice-over
continued by saying: “And reality star Audrina Patridge depends on it to stay red
carpet ready. The secret is that the Ab Circle Pro combines cardio and abs to burn
fat. While its unique friction free track uses the momentum of gravity to target the
entire mid section in a full circular motion firming your core in just a few minutes”.
You will start to trim and flatten your stomach in just weeks not months. We
guarantee it.” It featured a man and woman’s body being reduced in size and
becoming toned through simulation. The voice-over then said “Best of all its fun and
easy in fact three minutes on the Ab Circle Pro burns the same number of calories
as a 100 sit ups…” It featured Brendan Gaughan talking about his weight loss
experience with the Ab Circle Pro System and showed the same before and after
shots that had been seen at the beginning of the advertisement.
Complainant, P. D’Ath, said:
The "Ab Circle Pro V2 " is being heavily advertised on TV in New Zealand at the
moment.
The advert seeks to imply that by using the product you will have a very well toned
body with minimal effort.
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The first issue I have is that people are shown using the product that have highly
toned bodies, leading a person to reasonably believe that what they are seeing is
the expected outcome of using the product.
The advert displays a notice at the very end in tiny print (so small I can not read it
on anything except a big TV screen), for a very short period of time (I had to watch
the advert many times to be able to read the whole thing) to say that the results
shown are not typical.
If the advert acknowledges the results shown are not typical, then the results being
shown are mis-leading.
The vast majority of users could not expect the results they are seeing by doing
solely what is being advertised.
The other issue I have is that the primary message of the advert, that the Ab Circle
Pro V2 will give you a highly toned body, is modified by a tiny piece of text at the end
of the advert (the same text as mentioned above).
The advert should be modified to show V typical result of using the product, and
any warning text saying that the product does something other than what is shown
should be displayed in a readable sized font for sufficient duration so that the
majority of TV viewers in New Zealand can read that warning
The Chairman ruled that the following provisions were relevant:
Code for Advertising of Weight Management
Principle 3 - Advertisements should not by implication, omission, ambiguity
or exaggerated claim, mislead or deceive or be likely to mislead or deceive
consumers, abuse the trust of or exploit the lack of knowledge of consumers,
exploit the superstitious or without justifiable reason play on fear.
Guideline 3(a) Claims for specific weight loss or reduction in body
measurement should be typical, realistic, factual and able to be proved.
Guideline 3(b) Advertisements should not have depictions which unduly
glamorise the product or portray unrealistic outcomes.
The Advertiser, Brand Developers Limited, said:
We have been asked to respond to a complaint of this TVC under the Code of Ethics
Basic Principle 3.
Advertisements should not by implication, omission, ambiguity or exaggerated claim,
mislead or deceive or be likely to mislead or deceive consumers, abuse the trust of or
exploit the lack of knowledge of consumers, exploit the superstitious or without
justifiable reason play on fear.
This product was first launched by Brand Developers in 2009 and has been played
some 1000's of times on New Zealand television. This latest version of the advert
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was approved by CAB in January this year and has played over 2000 times since.
The advert in question is the 180 second version which in itself has been played on
multiple channels and the only difference being a different phone number advertised.
All versions have been given CAB approval with a G rating.
The complainant's first issue is concerned with the people that have been shown on
the advert.
We have shown testimonials from the celebrity endorsers that are/have been
professional athletes and the testimonial from Danielle Flores.
This range of different people that have used the Ab Circle Pro system and the
weight that they have lost while using it are not outlandish results and are typical
weight loss achievable by the majority of users if they adhere to the Ab Circle Pro
weight loss system. These results can be proved through the signed testimonial
release forms we have from the individuals shown
As we are concerned about our responsibility to the consumer when advertising, we
added in the super on screen when the testimonials play stating 'results not typical. A
complete Ab Circle Pro System includes reduced calorie diet and regular aerobic
exercise'.
This was to make sure that the customer understood that the weight loss from these
people on screen was not just from using the Ab Circle Pro machine but the complete
Ab Circle Pro system.
This is also why we offer the 30 day trial so if a customer is not happy with the results
they see they are welcome to return their product and receive their money back.
This advertising is not misleading as we are stating that the results shown are not
typical if you do not use the complete system as stated in the super.
We are more than happy to try and work with the Advertising Standards Authority to
make our advertising as clear as possible to the consumer and if will be happy to
change the wording of the super to read 'Results may vary' instead of 'results not
typical' if you see this as a better option.
As this advert has the CAB approval it shows we have met the requirements of The
New Zealand Advertising Authority when it comes to the supers that are shown on
screen. During the extensive advertising of this product we have never previously
received a complaint on the size of the super showing 'results not typical'. If the issue
revolves around the models displaying the product, this is a standard advertising
practice used in a majority of advertising as fitness where models are used as
demonstrators of the product.
Given this advert meets the Code compliance, the fact that 100s have played since
January and have elicited no other complaints we are confident that this
advertisement is not misleading and ask that the ASCB finds the advertisement
acceptable
Commercial Approvals Bureau (CAB) said on behalf of the media:
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We have been asked to respond to this complaint under the Code for Advertising of
Weight Management - Principle 3 - misleading; Principle 3 Guideline (a) -factual and
realistic and Guideline (b) - portrayal of unrealistic outcomes.
A complaint has queried the validity of bodytone claims made in the commercial.
This commercial is an update of the Ab Circle commercials which have aired on
television since February 2009.
Throughout the three minute advertisements numerous graphics are shown reading
"simulation", "results not typical", "Results May Vary" as three individuals extol the
benefits regular use of theAb Circle has made to them. Repeatedly "The complete
Ab Circle Pro System includes a reduced calorie diet and regular aerobic
exercise" graphic appears on the bottom of the screen.
"Three minutes a day burns the same calories as l00 situps" is quoted as a split
screen depicts usage of the Ab Circle and a person doing situps. Later in the
commercial where a treadmill is shown alongside Ab Circle usage the graphic :
"Cardio plus Abs = Fast Results".
Like many fitness equipment commercials the fact that regular aerobic workout is
necessary in conjunction with a healthy diet has been highlighted in this
advertisement. Of course individual results will vary according to what their initial
body shape was, how much time any person spends exercising and what their food
intact comprises of. In addition, a Money Back Guarantee is offered after a 30 day
trial if the consumer is not satisfied with the results they attain.
Surely the combination of clear graphics and a money back guarantee is reason
enough to not uphold this complaint
Deliberation
The Complaints Board carefully read all the correspondence in relation to the
complaint, and viewed a copy of the advertisement. It noted that the Complainant,
P.D’ Ath, was of the view that the advertisement implied that by using the product
you will have a very toned body with minimum effort and that what the viewer was
seeing was the expected outcome. The Complainant also noted that the disclaimer
stated that the results shown in the advertisement were not typical and therefore,
the Complainant said that the results pictured on-screen were misleading. The
Complainant further said that the advertisement should be modified to show a
typical result of using the product and that the disclaimer should be more clearly
displayed.
The Chairman directed the Complaints Board to consider the complaint with
reference to provisions from the Code for Advertising of Weight Management. These
were Principle 3 and Principle 3 Guidelines (a) and (b). Principle 3 of the Code for
Advertising of Weight Management required that advertisements should not by
implication, omission, ambiguity or exaggerated claim, mislead or deceive or be
likely to mislead or deceive consumers, abuse the trust of or exploit the lack of
knowledge of consumers, exploit the superstitious or without justifiable reason play
on fear. Guidelines (a) and (b) of the Code for Advertising of Weight Management
required that claims in advertisements for specific weight loss or reduction in body
measurement should be typical, realistic, factual and able to be proved and that
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advertisements should not have depictions which unduly glamorise the product or
unrealistic outcomes.
Turning to the advertisement, the Complaints Board noted that the disclaimer which
read: “Results not typical. The complete Ab Circle Pro V2 System includes a
reduced calorie diet and regular aerobic exercise”, appeared throughout the
advertisement when before and after shots were being shown to support the
individual testimonies of real people in the advertisement. The Complaints Board
noted that the disclaimer was in small font and featured on busy backgrounds which
made it hard for the viewer to read.
The Complaints Board then noted that the advertisement featured simulated images
showing different models’ core areas being reduced in size and becoming toned. It
further noted that the advertisement featured a voice-over saying: “You will start to
firm and flatten your stomach within a few weeks”. The Complaints Board
considered that the simulated images were powerful in trying to demonstrate
dramatic results that may be achieved using the Ab Circle Pro.
The Complaints Board then observed that the advertisement featured a number of
toned models and real people who had used or were using the Ab Circle Pro. The
Complaints Board was of the view that the use of toned models or real people
demonstrating the results they have achieved using the Ab Circle Pro was not in
itself misleading. However, it considered, given the poor readability of the disclaimer
coupled with the strength of the simulation images and the strong voice-over stating
(for example) that by using the Ab Circle Pro the consumer would start to firm and
flatten their stomach within weeks not months, the likely consumer take-out of the
advertisement was that was that by using the Ab Circle Pro alone the consumer
could achieve the results illustrated by the toned models, real people and simulated
images of the models. Therefore, the Complaints Board considered that consumers
would likely be misled by the advertisement and that it portrayed unrealistic
outcomes.
Observing all of the above, the Complaints Board said that the advertisement was in
breach of Principle 3 and Guidelines 3(a) and 3(b) of the Code for Advertising of
Weight Management. Accordingly, the Complaints Board ruled to uphold the
complaint.
Decision: Complaint Upheld