Posted 09 Feb 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.
Can the company prove that the product works? Of course not!
Here is the ASA ruling.
A Vogel Neuroforce / S Kaye / 16323
|Ruling of the : ASA Directorate|
|In the matter between:|
|SA Natural Products (Pty) Ltd||Respondent|
09 Feb 2011
Ms Kaye lodged a consumer complaint against the respondent’s advertisement appearing in, inter alia, the Weekend Argus during 2010. It promotes the respondent’s “Neuroforce” product as a “… natural product that provides support to the central nervous system”. It also contains the following claims:
- “An excellent central nervous system tonic if you are:
o Depressed, tearful
o Irritable, over sensitive, insecure
o Emotional, sad, unhappy, angry
o Hypersensitive, apathetic, confused
o Nervous, scared, fearful, on edge
o Tired, restless”;
- “… contains 14 different ingredients, each one working like a key. Your body will 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 …”
In essence, the complainant submitted that the respondent’s advertisement misrepresents this product as medically useful when there is no actual evidence of this. The product may well be bought and trusted by people who need real medical intervention.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
The respondent submitted that the advertisement and the claims made therein are based on the principles of homeopathy, of which it appears that the complainant is not informed.
In support of its efficacy claims, it submitted a letter of verification from Dr David Naudé, Senior Lecturer, Research Co-ordinator and Clinical Director of the Department of Homeopathy of Durban University of Technology. His CV was also submitted.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
At the outset it must be noted that medicinal products cannot be treated as an ordinary general commodity. They have the potential for harmful as well as beneficial effects and can cause serious problems if not used safely. For this reason, there are specific regulations that strictly control the advertising and promotion of medicinal products, and which are not administered by the ASA.
The scope of this ruling is limited to the subject matter of the complaint brought to the ASA, namely whether the claims concerning the efficacy of the respondent’s product can be substantiated. The ASA is not able or authorised to rule on the quality or safety of the product in question, and this ruling must be interpreted and applied accordingly.
Clause 4.1 of Section II requires advertisers to hold evidence or verification for all efficacy claims. it further stipulates that such evidence or verification shall either emanate from, or be evaluated by an independent and credible entity, who is “… an expert in the particular field to which the claims relate …”.
In such cases, the Directorate has two key considerations:
- Is the expert put forward an independent and credible expert in terms of the requirements of Clause 4.1 of Section II of the Code?
- Does the expert expressly verify the claims in question are true for the product advertised when used as recommended?
Dr Naudé is a registered Homoeopath, and according to his CV has a Masters Degree in Technology: Homoeopathy as well as an International Diploma in Iridology. His Masters Dissertation was titled “The efficacy of a topical Homoeopathic complex (Apis mellifica D3, Aloe vera Ø, Calendula officinalis Ø, and Urtica urens Ø) in the treatment of sunburn”.
He has, in addition to the above, also supervised Masters Dissertations on topics including menopause, acute sinusitis, Generalised Anxiety Disorder, Attention Deficit Hyperactivity Disorder (ADHD), patient satisfaction at Homoeopathic day clinics, and the perceptions of the profession of Homoeopathy in general. Other current dissertations relate, inter alia, to nicotine withdrawal symptoms and a comparison of homoeopathic preparations used on patients taking diabetes medicine (Metformin). In addition, he has jointly supervised dissertations on topics relating to nocturnal enuresis in children, ADHD, acne, Primary Insomnia, and the effect of Spinal Manipulation Therapy combined with Homoeopathic preparations for treatment of migraines.
He has published one research article which deals with the efficacy of Homoeopathic Simillimum on Insomnia.
In Homemark Slim Coffee / HA Steinman / 12988 (25 March 2010), the Final Appeal Committee (the FAC) provided the following clarity in terms of who should be regarded as an “expert” for the purposes of Clause 4.1 of Section II of the Code. It stated as follows:
“O’Dowd on the Law of Evidence in South Africa points out: ‘An expert should preferably be a person who, in the course of his profession, has acquired not only theoretical knowledge, but also practical experience of the matters on which he is to testify. It is, however, impossible to lay down any general test more precise than the questions: ‘Is he skilled?’ ‘Has he special knowledge which gives him more opportunity of judging than other people?’.”
It is also worth noting that an expert cannot be deemed an “expert” in comparison to other people who are not practising in the relevant field. For example, a doctor who has just qualified as a surgeon would not automatically be deemed an “expert” surgeon simply because he has the skill to perform surgery, which the average man on the street does not.
The status of “expert in the particular field to which the claims relate” as required by the Code implies that the entity put up as an expert must have obtained knowledge and/or experience and/or skills that sets him apart from a general person practicing in the relevant field.
Considering the above, and more particularly keeping in mind the nature of the claims made, which all relate to anxiety, depression, emotionality and other symptoms of mood disorders, the Directorate is not satisfied that Dr Naudé qualifies as an “expert” in the relevant field. He has not ex facie published any research in this field, and has, at best, supervised a hand full of student dissertations that may potentially be related to this subject matter.
In addition to this, it is worth noting that nothing before the Directorate suggests that the respondent’s product as a whole, has ever been tested to confirm that it can deliver the claimed effects when used as recommended.
Given the above, the Directorate does not accept Dr Naudé as an independent and credible expert in the relevant field, nor does it accept the substantiation submitted by the respondent.
The advertisement in question is therefore in contravention of Clause 4.1 of Section II of the Code.
Given the above finding:
- The advertisement must be withdrawn;
- The process to withdraw the advertisement must be actioned with immediate effect on receipt of this ruling;
- The withdrawal of the advertisement must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
- The advertisement may not be used again in its current format.
The complaint is upheld.
Update: Health Products SA appealed this ruling. On 11 November 2011, the ASA dismissed the appeal ruling against Health Products SA.