Posted 31 January 2014
This ASA ruling is in response to a breach complaint arguing that AllergoStop continues to make unsubstantiated claims for its product – contrary to the previous ruling. The complainant makes the point that the claims are contrary to known science and knowledge of allergy.
23 Jan 2014
In Allergostop / H A Steinman / 22598 (4 November 2013) the Directorate considered the respondent’s print advertisement for Allergostop, which was published in “Cape Town Get It” during September 2013. At the time, the respondent offered to amend its advertising to state that the product “may” assist, as opposed to that it does assist. This undertaking was regarded as insufficient and was rejected by the Directorate. In considering the matter, the Directorate ruled that the advertising was unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
The advertisement was headed “Tired of cortisone, anti-histamines and antibiotics? Recurrent throat and ear infections? Asthma, sinus, eczema, hay fever and allergies?” Directly below this, a large, bold banner read “Allergostop is the answer!”
It then carried a body-copy explaining that the treatment protocol was based on a “German method” and that the product “… consists of treatment with immunoglobulins that play a dominant role at the time of the allergic reaction”.
Other claims identified in the ruling were:
“The patient-specific reaction products such as allergic antibodies, auto-antibodies and enzymes responsible for the allergic reaction are changed by the serum activator and then returned to the patient’s body where these reactions products will be recognised as foreign, and specific counter-actions can therefore take place (anti-antibody reactions)”,
“Allergostop is recommended to both exogenous allergies (such as gluten, lactose, house dust mites, pollens, dairy and animal hairs, etc.) as well as endogenous anti-immune anti-bodies. There are two methods of administration of Allergostop i.e. sub-cutaneous injections or oral drops”.
Given the adverse ruling, the respondent was instructed to withdraw its advertising and relevant claims, and refrain from using it until adequate substantiation had been submitted and accepted by way of a new Directorate ruling.
SUBSEQUENT TO THIS RULING
On 14 January 2014, another consumer complainant not party to the original dispute, Prof ME Levin, lodged a breach complaint against the respondent’s website www.tygerbergmulticare.co.za/areas-of-treatment/allergies/. Prof Levin submitted that the website is still operational in contravention of the Directorate’s original ruling against the respondent.
On the same day, the original complainant (Dr Steinman) also lodged a breach allegation against the respondent’s advertising on the same URL, arguing that the respondent continues to make unsubstantiated claims for Allergostop in breach of the previous ASA ruling. He added that the product’s claims are so contrary to the known physiological principles of allergy that they are simply nonsensical.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted that it clearly misunderstood the letter from the ASA and had not published any advertisement after it received the letter from the ASA stating that it was not allowed to advertise Allergostop in its current format.
The respondent submitted that it understood that the Directorate ruling to take issue with the claim that this product would be beneficial in instances where cortisone, anti-histamines and antibiotics are not, or are not desired by the patient. To its knowledge the website did not give that impression, but it has asked its website designer to rectify the matter.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The question before the Directorate is whether or not the respondent’s advertising is in breach of the previous ruling. For this to be the case, the respondent would have to be making the same, or substantially similar claims to those originally ruled against.
In explaining why the initial undertaking to refer to “Allergostop can be the answer!” would not suffice, the Directorate explained as follows:
“The overwhelming impression is that this product would be beneficial in instances where cortisone, anti-histamines and antibiotics are not, or are not desired by the patient. The advertisement lists specific conditions such as ‘Asthma, sinus, eczema, hay fever and allergies’ and explains how using the product would produce an ‘anti-antibody reaction’. In addition, it pertinently states that this product is ‘recommended to both exogenous … as well as endogenous anti-immune anti-bodies …’
It is therefore clear that the overall message is that this product will work. The respondent is correct in stating that not all medicine is effective 100% of the time in all patients, but this is not the point currently. The question still arises whether the respondent has any evidence to support the notion that this product is beneficial (or even that it ‘may’ be beneficial)” (our underlining).
From this it is apparent that the Directorate was concerned with the overall implication of efficacy, and not so much whether this is limited to the context of cortisone, anti-histamines or antibiotics as the respondent appears to have understood it.
In dealing with the merits of the matter, the Directorate further stated:
“… The Directorate requires unequivocal confirmation from an independent and credible expert in the relevant field (allergies and related treatments) to support the exact claims made in the advertising. Such unequivocal verification should apply specifically to the respondent’s product as sold to customers.
There is currently nothing before the Directorate to show that the product is able to (or even that it ‘may’ be able to) deliver on the efficacy claims made”.
This clearly suggests that the core concern related to general efficacy claims, which the respondent was unable to substantiate.
When considering the respondent’s current advertisement, as a whole, the underlying impression created is still that this product would be beneficial in providing “… a long-term solution for both adults and children” insofar as allergies are concerned. It reads, inter alia, as follows:
“… The Tygerberg Multicare Centre uses Allergostop for the treatment of allergies and this revolutionary German product provides a long-term solution for both adults and children …” (respondent’s emphasis)
It explains in basic terms how the test works, as well as that “Allergostop is recommended for both exogenous allergies (such as gluten, lactose, house dust mites, pollens and dairy, animal hairs etc.) and endogenous auto-immune antibodies …” (respondent’s emphasis).
Accordingly, based on the information at hand, the Directorate finds that the respondent has breached the provisions of Clause 15 of the Procedural Guide by not adhering to the original Directorate ruling.
Ordinarily, the Directorate would invite the parties to comment on whether or not sanctions are warranted, and if so, which sanctions.
However, the breach does not appear to be a flagrant and callous disregard of the spirit and letter of the ASA Code in a manner that is likely to bring advertising into disrepute. This appears to be the first breach, which would not suggest that the respondent is a repeat offender. The respondent does not have a history with the ASA, and other than the current dispute, no other complaints have been received against this company. It is also noted that at the time of ruling, the relevant website had been deactivated and was “… under construction”, which would suggest that the respondent is attempting to rectify the issue.
Accordingly, the Directorate does not believe sanctions are appropriate at this time.
The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent at this time other than again reminding the respondent to stop making any direct or implied efficacy claims until adequate substantiation has been accepted by the ASA.