Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A 30-minute teleshopping ad for Home Shopping Mall’s SlimFreezer ‘cold lipolysis’ device, seen on 4 November 2015. Throughout, the ad made claims about the device’s efficacy for fat loss, such as “FREEZE YOUR FAT”, “COLD LIPOLYSIS Results in 6 weeks”, “Cold lipolysis is recognised as an effective non-surgical alternative to liposuction. And SlimFreezer uses this very same proven technology to get you incredible results”, and “Now you can finally simply freeze away any unwanted fat”. The ad featured a number of testimonials and ‘before and after’ photos which included claims that individuals had lost upwards of 17% fat using the device. During one sequence the voice-over stated, “So stop spending your time and money on fad diets, pills, creams and countless other products that just might not work”, accompanied by footage which included a woman who disinterestedly played with a bowl of salad and another woman in a gym firstly on a treadmill then doing sit-ups.
Issue
The complainant challenged whether:
1. the claims that the product could aid fat loss were misleading and could be substantiated; and
2. the ad was irresponsible, because it discouraged exercise and healthy diets.
Response
1. Home Shopping Mall Ltd said it was accepted science that the process of cold lipolysis killed fat cells, and there were numerous articles in the public domain which explained the process of cold lipolysis on fat cells. They said it was also accepted scientific fact that while diet and exercise could shrink the size of fat cells, it would not remove them.
Home Shopping Mall said the SlimFreezer delivered temperatures in a range of -6 to -8°C to a localised area and its efficacy had been tested in a six-week study conducted on 22 participants in 2012. Weight, waist circumference and subcutaneous fat were measured at the start of the study and again after six weeks. They said the results showed a significant decrease in each of those measurements in the area the SlimFreezer had been applied, in all participants. They provided a copy of the study protocol and results. They also provided a copy of the project outline for a new planned study on the SlimFreezer’s efficacy.
RHF Productions Ltd, the broadcaster of The Dept Store channel on which the ad appeared, said that in instances where an ad was not approved for broadcast by Clearcast (as was the case in this instance) they asked for a detailed compliance report from the advertiser confirming that the content was compliant with the BCAP Code. They said the compliance report provided to them by Home Shopping Mall satisfactorily stated that they had taken into account: whether documentary evidence substantiated all direct or implied claims; whether the claimed amounts or rates of weight loss complied with the BCAP Code; on-screen disclaimers; a review of scientific studies or consumer trials where relevant; and verification of testimonial documentation. RHF Productions Ltd said that while they did not hold evidence themselves to support the claims in the ad, the compliance report confirmed that all relevant documentation was held by Home Shopping Mall and that it could be supplied to the ASA if requested.
TV Warehouse Ltd, the broadcaster of the channel TV Warehouse on which the ad also appeared, said it was customary for them to require that the ads they broadcast should be cleared by Clearcast. In this instance, however, they had not, due to staff changes. They said that they were aware that Home Shopping Mall maintained files for each of their products with all relevant substantiation and endorsed Home Shopping Mall’s response to the complaint.
2. Home Shopping Mall said the SlimFreezer was not marketed as a cure for obesity or as a weight loss product, and said that they actively encouraged healthy exercise and diet. They highlighted a section of the voice-over which stated, “Are you tired of the never-ending battle to try and keep your body looking slender? Well there’s a scientific explanation for this: when you gain body fat, you’re often increasing the number of fat cells in your body. Diet and exercise only help to shrink the size of these fat cells. It’s a scientific fact that diet and exercise will not remove any fat cells, so as you get older and accumulate fat cells over time, it’s increasingly hard to keep these cells small in size”. They said they therefore included shots of the woman struggling in the gym. They said the ad did not instruct viewers to stop exercising, nor did it discredit the benefits of exercising, but used those shots to help explain and educate about that scientific fact.
Home Shopping Mall said the shot of the woman playing with a bowl of salad was an example of a “fad” diet, showing only lettuce in a bowl, which was an unhealthy and insufficient diet as it did not contain the recommended daily calories, vitamins and nutrients to meet the UK’s reference nutrient intakes. They added that throughout the ad they included on-screen text such as “Eat a healthy diet and exercise for optimal results” to promote a healthy lifestyle.
RHF Productions Ltd said they were aware that ads for a similar product had been broadcast on other mainstream channels and that Home Shopping Mall had used an experienced media compliance officer to ensure the ad complied with the BCAP Code, including that evidence supported the claims. They said the product was positioned as an aid to helping subjects lose targeted fat in problem areas and highlighted that it pointed out that it was important to eat a healthy diet and exercise for optimal results.
TV Warehouse Ltd said they would not broadcast ads which they believed would cause harm or offence and on reviewing the ad again considered it did not breach the BCAP Code in that regard.
Assessment
1. Upheld
The ad featured a range of stated and implied claims, such as “effective non-surgical alternative to liposuction”, “simply freeze away any unwanted fat”, and references to customers having lost specific percentages of fat from areas of their body, which we considered consumers would understand to mean that using the SlimFreezer would result in the loss of fat from the area of the body to which it was applied. The ASA expected Home Shopping Mall to provide documentary evidence, in the form of studies on humans, to support such claims.
Home Shopping Mall had not provided evidence to support their assertions that diet and exercise could reduce the volume of fat held in fat cells but could not remove the cells, and that fat cells crystallised and died at cold temperatures without harming surrounding cells and tissue. However, we understood that those assertions were generally accepted by the scientific community. Notwithstanding that, we noted the ad also included statements such as “…When you gain body fat you’re often increasing the number of fat cells in your body … So as you get older and accumulate more fat cells over time it’s increasingly hard to try to keep these fat cells small in size”, which we considered implied that it was normal for the number of fat cells in the body to increase through weight gain and the ageing process. We understood, though, that generally the number of fat cells in an individuals’ body remained constant after adolescence and that ageing, or increases in the fat content of the body, resulted in those cells increasing in volume rather than in the creation of new fat cells. We therefore considered the implication in the ad that it was normal for the number of fat cells in the body to increase through weight gain and the ageing process, thereby contributing to the impression that controlled diet and exercise were not viable methods of achieving fat loss, was misleading.
Home Shopping Mall had provided an export certificate from China which stated that the product had been tested and shown to produce temperatures of between -6 and -8°C, but they had not provided any evidence that demonstrated that those temperatures, as delivered by the SlimFreezer, were capable of inducing cold lipolysis.
The project outline for a planned study on SlimFreezer did not constitute evidence for the device’s efficacy. We reviewed the report of the six-week study of the SlimFreezer’s effects conducted in 2012. The study involved only a small group of participants and did not involve a control group. No information was provided about inclusion or exclusion criteria, and it did not take into account participants’ diet and exercise regimes or address the possibility of bias. Participants chose where to apply the SlimFreezer in the waist area, but there was no detailed reporting of where each participant had applied the device and whether measurements had been taken accordingly. The results had not been subjected to statistical analysis and it was therefore not clear whether the reported effects were statistically significant. Additionally, the study was limited to a single assessment after six weeks with no follow-up, and it was therefore not clear whether the reported effects were maintained over time, or as claimed in the ad, that repeated applications would maintain or improve the claimed effects. We considered that because the study was not methodologically robust and the results had not been subjected to statistical analysis, it was not sufficient evidence to substantiate stated or implied claims that the SlimFreezer caused or aided fat loss.
Because we had not seen evidence to support claims that the SlimFreezer caused or aided fat loss, or that it delivered cold lipolysis, we concluded the ad was misleading.
On this point, the ad breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 12.2 12.2 If they are necessary for the assessment of claims, broadcasters must, before the advertisement is broadcast, obtain generally accepted scientific evidence and independent expert advice. (Weight control and slimming).
2. Upheld
As noted above, the ad included statements that diet and exercise could reduce the volume of fat in fat cells but could not remove them, which we understood to be factual. However, it also included claims that the number of fat cells in the body increased through weight gain and the ageing process, which we understood was not the case, and which as referenced above we considered contributed to the impression that controlled diet and exercise were not viable methods of achieving fat loss. Additionally, the ad included repeated claims that the SlimFreezer was a quick and easy way of achieving fat loss, and featured scenes where people appeared unenthusiastic about eating healthy food and exercising. In that context we considered the overall impression created by the ad was that a healthy diet and exercise could not prevent or address the accumulation of fat. We concluded the ad therefore discouraged exercise and healthy diets.
On this point, the ad breached BCAP Code rule 1.2 1.2 Advertisements must be prepared with a sense of responsibility to the audience and to society. (Responsible advertising).
Action
The ad must not appear again in the form complained about. We told Home Shopping Mall Ltd not to claim that the SlimFreezer delivered cold lipolysis, or that it could aid fat loss, unless those claims were supported by new and robust evidence. We also told them to ensure their ads did not discourage exercise and healthy diets.
