Posted 22 July 2012
A consumer lodged a consumer complaint against a print advertisement promoting “Molkosan” as “The centuries old ‘whey’ to good health”. The advertisement appeared in the Sunday Times, and contains, inter alia, a testimonial. In essence the complainant submitted that the testimonial is effectively making a “before and after” claim which requires suitable substantiation. In addition, it makes an efficacy claim insofar as weight loss is concerned, and therefore also requires evidence.
|A Vogel Molkosan / K Charleston / 18572|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
SA Natural Products (Pty) Ltd Respondent
17 Jul 2012
Mr Charleston lodged a consumer complaint against a print advertisement promoting the respondent’s “Molkosan” product as “The centuries old ‘whey’ to good health”.
The advertisement appeared in the Sunday Times, and contains, inter alia, a testimonial provided by “Mrs Susan N, Free State”. The testimonial reads:
“Colon problems have exhausted me, but with Molkosan in the fridge i am no longer afraid to eat tomatoes, onions, green peppers and the like. My husband is a type 2 diabetic and was constantly tired and weary until he also started using Molkosan, with unbeatable results. We use it twice daily … and the bonus: loss of weight! Because Molkosan accelerates the metabolism, doesn’t it? I must admit the taste of it posed quite a challenge!”
It explains how “Renowned Swiss naturopath Alfred Vogel recommended Molkosan” and that people in “more than 23 countries” use it for the following reasons:
• “As a prebiotic to maintain healthy intestinal flora”
• “To improve lactose tolerance”
• “To improve absorbtion of minerals
• “To stimulate secretion of digestive enzymes”
In essence the complainant submitted that the testimonial is effectively making a “before and after” claim in respect of the husband constantly feeling tired before using this product. This requires suitable substantiation. In addition, it makes an efficacy claim insofar as weight loss is concerned, and therefore also requires evidence.
In addition, the testimonial is in breach of Appendix F of the Code by virtue of the reference to diabetes. The references to weight loss are also in contravention of Appendix E of the Code. Lastly, the claim that this product accelerates metabolism has no scientific basis and requires substantiation.
He added that whey actually contains proteins that are directly responsible for milk allergies, thus rendering the claim “To improve lactose intolerance” irresponsible. He added that whey contains lactose and should be avoided by those who are truly lactose intolerant. In closing, he argued that the claims at issue have no scientific basis and are in contravention of the Code.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complaint identified the following clauses of the Code as relevant:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 10 – Testimonials
• Appendix E – Advertising for slimming
• Appendix F – References to diseases in advertising
The respondent firstly noted that the testimonial was received unsolicited, and used with the permission of “Mrs Susan N” without any remuneration. It relates to her personal experience and should not be interpreted as an efficacy claim in the manner that the complainant has done.
Insofar as the general efficacy of the product is concerned, it submitted a letter of verification from Mr Stefafn Johann Truttmann of Switzerland, which deals with the product’s use and application, as well as his abridged CV.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The complainant took issue with the advertisement on the basis that it implies weight loss abilities without confirming to the rest of the requirements of Appendix E.
Appendix E is titled “Advertising for slimming”, and contains detailed information on what the Code requires “slimming” to be, the general principles that apply to such advertising, and the four types of treatments that fall under this appendix. These are:
Aids to dieting (in the general sense),
Foods offered as diet aids,
The problem that the Directorate is faced with here is that the complainant has not identified which requirements of Appendix E he believes are not met, or why this is the case. It would not be appropriate for the Directorate to conduct a search of the entire appendix in order to find areas that might be problematic, as this would go beyond the complaint, extending its scope beyond what the complainant argued.
As such, the Directorate cannot, at this stage and based on the complaint at hand, rule on whether or not the respondent is compliant with Appendix E of the Code.
This aspect of the complaint is therefore dismissed.
This appendix is titled “References to diseases in advertising”, and lists a host of illnesses and conditions to which no reference may be made, no advice offered, and no product recommended unless such advice or recommendations accord with full product registration with the Medicines Control Council. One of the conditions listed in this appendix is “Diabetes”.
The complainant argued that the testimonial claims that the product helped energise her diabetic husband, which is in contravention of this appendix.
The respondent argued that the testimonial does not qualify as a claim to treat or cure any disease. It is merely an unsolicited comment from one of its satisfied customers.
Considering the testimonial as a whole, the Directorate does not believe that it intends to recommend this product as something that would treat, cure, or even make the condition of diabetes more palliative (refer the Final Appeal Committee’s ruling in Solal Tech Omega 3 & 6 / K Charleston / 16711 (2 February 2012) for through explanation of why this is the context in which Appendix F should be interpreted).
The likely takeout of this testimonial would be that the product alleviated the lack of energy experienced by “Mrs Sandy N” as well as her husband, who also happens to be diabetic. This is not the same as claiming that the product alleviated the symptoms associated with diabetes. It is also worth noting that this is the only reference to diabetes contained in the advertisement, which adds to the argument that diabetes is not a condition that would benefit from the product, but rather that even diabetics are able to use the product with benefit. Put differently, the testimonial is not saying “if you are a diabetic, then this product is for you”, but rather that “you could use this product even if you are diabetic”. It relates to feelings of lethargy and not to diabetes as a medical condition.
While the distinction between these two takeouts is subtle, it is significant enough to effectively remove this reference from the ambit of Appendix F.
Accordingly, the Directorate does not agree that the testimonial is in contravention of Appendix F for the reasons advanced by the complainant.
This aspect of the complaint is therefore dismissed.
The complainant took issue with the following references on the grounds that they were unsubstantiated:
Molkosan accelerates metabolism
Improve lactose tolerance
Improve the absorption of minerals
Stimulates the secretion of digestive enzymes
He added that the second claim cannot be true as whey contains lactose and why proteins are directly responsible for some milk allergies.
In answering this aspect of the complaint, the respondent relied on the verification of Mr Stefan Johann Truttmann, a “Specialist in food Biotechnology and food Microbiology”. His abridged CV explains that he has completed “Bachelor and Master Studies in Food Science at the Swiss Federal Institute of Technology in Zurich” and that he is currently a “Scientific Assistant” in the Laboratory of Food Biotechnology at the Institute of Food, Nutrition and Heath of the Swiss Federal Institute of Technology. He has occupied this position for nearly seven years now.
Prior to this, he, inter alia, gained experience in food microbiology and molecular biology while working at a laboratory of food control. The Directorate also notes that the product and claims at issue appear to fall within the field of nutrition and digestion, which appears to correlate with Mr Truttmann’s qualifications and experience.
From this, it would appear ex facie that Mr Truttmann meets the requirements of an independent and credible expert in the field to which the claims relate.
The only remaining question is whether or not Mr Truttmann’s verification is sufficient to confirm that the relevant claims are true.
Mr Truttmann confirms firstly that “Molkosan does not contain whey, but fermented whey and is protein- and lactose-free”. He also detailed the standardised process with which Molkosan is produced (which was developed in cooperation with the Swiss Federal Institute of Technology), and confirmed that “The final product of this process, Molkosan, contains no lactose nor proteins but is rich in L+lactic acid …” He explains that every produced batch is checked to ensure that it is free of lactose.
He further confirms that the two issues raised by the complainant (that whey proteins are directly responsible for some milk allergies and that whey contains lactose and should be avoided by those truly lactose intolerant) cannot be applied to this product and are in fact null and void.
While the respondent did not provide all the research relied on, it submitted a detailed reference to the relevant literature. From this, the Directorate was able to source full copies of some of the research articles and abstracts of others. However, given the explanation provided by Mr Truttmann, this was of no consequence.
The Directorate also notes that Mr Truttmann did not comment on the claim that “Molkosan accelerates the metabolism” as presented in the testimonial. However, this is not material at this time, as his comments above illustrate that the complainant appears to be factually incorrect in arguing that the product would exacerbate milk allergies and lactose intolerance.
This means that the basis of the complaint is flawed, in that it appears that the complainant had an incorrect understanding of the nature and contents of this product. It is also noted that the advertisement stipulates that the product contains “lactofermented whey concentrate” and that it is “lactose free”.
Given the above, the complaint should be dismissed outright, meaning that the Directorate does not need to consider the substantiation for these claims at this time.
The complaint is therefore dismissed.