Posted 11 November 2011
A Vogel Neuroforce makes the claims of being an excellent central nervous system tonic, for among other, when you are depressed, tearful, irritable, and so forth.A consumer laid a complaint with the ASA arguing that the claims are not substantiable. The ASA agreed and on 09 Feb 2011 ruled against the product's claims.
The company, SA Natural Products, appealed against the ruling arguing that the ASA were wrong to regard their "expert" as not adequate to substantiate the claims for the product. In this ruling, the ASA finds that even if they did accept SA Natural Products' "expert" as acceptable, that his substantiation does not unequivocally support the claims for the product!
How is that for shooting yourself in the foot!
He stated: "In the absence of clinical trials on this specific combination of homeopathic medicines one can only hypothesize that a combination of such medicines would be ‘excellent’ with respect to clinical effectiveness. I am quite sure that your company is well aware of the need to justifying medical claims with clinical trials, I can thus only conclude that the use of the term ‘excellent’ in the advertisements pertains to the former and not the latter i.e. that A. Vogel Neuroforce is an ‘excellent’ formulation."
A Vogel Neuroforce / S Kaye / 16323 (ASC)
Ruling of the : Advertising Standards Committee
In the matter between:
SA Natural Products (Pty) Ltd Complainant(s)/Appellant(s)
Sydney Kaye Respondent
At a meeting held on 31 May 2011, the Advertising Standards Committee (“the ASC”) considered an appeal by SA Natural Products (Pty) Ltd against a ruling of the Directorate dated 9 February 2011 in which the Directorate rejected Dr Naude as an independent and credible expert in the relevant field. It accordingly rejected the substantiation that the appellant submitted.
The respondent lodged a complaint against an advertisement by the appellant that appeared inter alia in the Weekend Argus during 2010. The advertisement promotes the respondent’s “Neuroforce” product as a “… natural product that provides support for the central nervous system”. It also contains the following claims:
“An excellent central nervous system tonic if you are:
Irritable, over sensitive, insecure
Emotional, sad, unhappy, angry
Hypersensitive, apathetic, confused
Nervous, scared, fearful, on edge
“… contains 14 different ingredients, each one working like a key. Your body choose what it needs”;
“Take it every ten minutes in very stressful situations, otherwise two to five times a day until you feel that you are over the worst …”.
The essence of the complaint was that the advertisement misrepresented this product as medically useful when there is no actual evidence of this. People who need medical intervention may be influenced to buy the product as a result of the representations made.
The Directorate considered whether the efficacy of the respondent’s product could be substantiated. The substantiation has to be by an independent and credible expert.
The appellant submitted documents to substantiate the claims. The substantiation was by Dr Naude, a registered homeopath. He holds various qualifications and has published articles and supervised masters’ students. It is not necessary to give full details of these given the conclusion that the ASC has reached.
Taking into account the nature of the claims made, especially as they relate to anxiety, depression, emotional problems and other symptoms of mood disorders, the Directorate was not satisfied that Dr Naude qualified as an expert in the relevant field to verify the claims. It found that he had not published research in the particular field and had only supervised a handful of masters students related to the relevant subject matter of the claims. Further that there was nothing before the Directorate to suggest that the product as a whole had ever been tested to determine whether it could deliver the results as claimed. In consequence the Directorate rejected Dr Naude as an independent and credible expert, as well as the substantiation that he sought to provide in support of the claims. It upheld the complaint.
The appellant contends that the Directorate:
failed to attach sufficient weight to Dr Naude’s academic qualifications;
failed to attach sufficient weight to Dr Naude’s overseeing Masters’ dissertations;
failed to consider Dr Naude’s clinical experience at all;
attached too much weight to the requirement that an expert must have published research material;
incorrectly required that the product itself be clinically tested; and
failed to consider Dr Naude’s submissions at all.
In support of the appeal, the appellant also submitted a reference from the Homeopathic Association of South Africa dated 18 February 2011 (signed by Dr Neil Gower, Honorary Secretary) and another by Dr Alan Tomlinson, Chairman of the Health Products Association of South Africa and Vice Chairman of the Allied Health Professions Council of South Africa.
In response to the appeal, the respondent points out that the appellant attempts to take the ASC in the direction of homeopathy. In that field the title of “Doctor” referring to “Dr” Naude, is a misrepresentation because it suggests that he is a medical doctor and can deal with medical products. Further that the references from organisations on homeopathy are self-serving because they promote homeopathy as an alternative to medicine.
THE ASC RULING
The ASC has no valid basis to dispute that Dr Naude is an independent and credible expert in the field of homeopathy.
Accepting his expertise in homeopathy, it is clear from his report submitted in substantiation of the claims that he too views the claims made, or aspects thereof, as potentially misleading, deceptive or ambiguous. We quote the following passage from his report that supports this conclusion:
“… Given the potential wide spectrum of action A. Vogel Neuroforce as described by the material medica of its individual constituents it could be argued that this specific combination of medicines ensures a wide variety of symptoms are treated in the presence of an imbalanced nervous system thus the formulation of the phrase ‘An excellent … tonic’ if the term ‘excellent’ pertains to the unique combination of ingredients producing a nerve tonic of broad application and its potential to treat a variety of symptoms of the same general condition the use of the term ‘excellent’ is justified. If the term ‘excellent’ infers clinical efficacy, however, formal clinical evidence is necessary in order to substantiate the inference made. In the absence of clinical trials on this specific combination of homeopathic medicines one can only hypothesize that a combination of such medicines would be ‘excellent’ with respect to clinical effectiveness. I am quite sure that your company is well aware of the need to justifying medical claims with clinical trials, I can thus only conclude that the use of the term ‘excellent’ in the advertisements pertains to the former and not the latter i.e. that A. Vogel Neuroforce is an ‘excellent’ formulation. I would however recommend that given the potential for ambiguity in this regard that the sentence be rephrased and/or the word ‘excellent’ be deleted”.
It is plain from Dr Naude’s report quoted above that there is potential for an average consumer to understand the advertisement to be making claims of clinical efficacy as well. To this extent, such claims would be unsubstantiated, misleading, deceptive or ambiguous in the absence of clinical trials. No results of clinical trials were presented to the ASC.
The ASC concludes that even accepting Dr Naude as an independent and credible expert, his report supports the respondent’s contention that certain of the claims made, i.e. as to clinical efficacy, whether made expressly or impliedly, are unsubstantiated, misleading, deceptive or ambiguous. The appeal cannot succeed for this reason.
In light of the above finding, the appeal is dismissed.