ASA ruling against Solal Tech Omega 3 & 6 claims

Posted 5 July 2011

A consumer complaint against Solal’s newspaper advertisement that was headed “Why omegas are so important and how to choose the safest one”. It also contains, inter alia, the following claims:

  • “… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk of heart attacks, strokes, arthritis, diabetes and depression”.
  • “The information presented above is the informed opinion of SOLAL Technologies after review of scientific research and medical literature”.  

The consumer cited a number of ASA clauses and regulations that these claims were contrary to. The ASA concluded that Appendix A was no longer applicable for it had been altered in the intervening period between the laying of the complaint and assessing the complaint. However, the ASA did find against the claims by applying other clauses, including Appendix F (References to diseases in advertising).

It is particularly important for readers of this blog to note that the ASA will not make the personal details of consumers who complain about adverts available to the respondents. This is to prevent "victimisation and intimidation" of consumers who complain, and to ensure that complaints are not stifled for fear of harassment.  

Significantly the ASA comments:
"The respondent has not commented on the merits of the complaint, and moreover has not submitted any evidence that its products accord with full registration and recommendation by the MCC as is required by this appendix. In light of this, the respondent’s advertisement is in contravention of Appendix F."

This is hugely powerful — any product making an Appendix F disease claim must be registered! 

Solal Tech Omega 3 & 6 / K Charleston / 16711
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

29 Jun 2011
http://www.asasa.org.za/ResultDetail.aspx?Ruling=5623

Mr Charleston lodged a consumer complaint against Solal’s newspaper advertisement that appeared in the Business Day during October 2010.

The advertisement is headed “Why omegas are so important and how to choose the safest one”. It also contains, inter alia, the following claims:

“… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk of heart attacks, strokes, arthritis, diabetes and depression”.

“The information presented above is the informed opinion of SOLAL Technologies after review of scientific research and medical literature”.

“PRESCRIBED BY DOCTORS – RECOMMENDED BY PHARMACISTS”.

COMPLAINT
The complainant essentially submitted that these claims are in breach of Appendix A of the Code, more specifically the provisions dealing with the topic of vitamins and minerals, as well as Appendix F of the Code, due to the fact that it suggests a deficiency in omega 3 increases a risk for diseases listed in this appendix.

He added that the references to doctors prescribing these products and pharmacists recommending it are in breach of the provisions of Appendix A dealing with scientific research and medical literature.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:

Clause 5.1 of Appendix A (Impressions of professional advice or support) – [relates to an earlier version of the Code, which has since been amended]

Clause 8.21.1 of Appendix A (Unacceptable claims: Particular products, treatments, symptoms and conditions – Vitamins and minerals)

Appendix F (References to diseases in advertising)

RESPONSE
Aside from a protracted trail of correspondence, which will be briefly dealt with below where necessary, the respondent’s final response was submitted on its behalf by attorneys Fluxmans Inc.

This response argues that the complaint is “defective and invalid’ because the contact details and identity or passport number of the complainant were not included in the complaint received. Either the complainant omitted this information (in contravention of the procedural requirements of the Code), or the ASA deliberately deleted this information, something that is not provided for in the Code. As such, the ASA is precluded from investigating this complaint.

It added that the material complained of does not constitute “advertising” as defined in the Code. The argument appears to be that the copy of the advertisement attached to the complaint cannot be the one published in the Business Day as alleged, because:

1) The copy published in the newspaper was substantially smaller, and

2) The advertisement is not bordered by other material from the newspaper, which would ordinarily show that it was from a page appearing in the newspaper.

Based on this, the respondent alleged that the advertisement was more than likely sourced from its website archives, where old advertisements are kept. On this same website, each archived advertisement carries a disclaimer which reads:

“The adverts/media archive is intended to be used solely for reference, educational, research and/or non-commercial purposes and is not intended to reflect current advertising. Therefore all content … should not be construed as being up to date, accurate and/or current …”.

This alone means that the ASA is precluded from investigating these advertisements because they are no longer current as required by the Code (Refer Clause 3.3 of the Procedural Guide).

In addition to this, the respondent argued that the complainant has “surreptitiously and deceptively” attempted to disguise a competitor complaint by the Treatment Action Campaign (The TAC) as a consumer complaint. This argument is based on the fact that the complainant has contributed to, or commented on a blog run by the TAC on www.quackdown.co.za, who in turn is vigorously promoting pharmaceutical products that compete with the respondent. In support of its argument that the TAC have such a commercial interest, it attached a section of an affidavit deposed by Advocate Anthony Brink, an officer of the High Court, in proceedings where he was a respondent in case number 12156/05. Clearly the complainant is attempting to avoid paying the required fee for competitor complaints.

Finally, in dealing with the merits, it argued that the ASA has no jurisdiction to enforce the requirements of Appendix A and Appendix F. Where relevant, such aspects will be dealt with in the ruling.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

At the outset, the Directorate rejects the respondent’s assumption that the advertisement was not, in fact, sourced from the actual newspaper in which they appeared. The complaint was received within days of its appearing in the newspaper, and the scanned image clearly shows the paper to be similar to that commonly found in newspapers. In addition, when one scrutinises the scanned copy of the advertisement received, and ultimately sent to the respondent, one can notice fine lines or creases in the paper. Similarly, the respondent appears to disingenuously argue that because the advertisement submitted is not surrounded by other content, it could not have come from said newspaper. This is illogical, as may complainants simply cut out the relevant advertisement before sending it to the ASA. There is no reason why the complainant could not have done the same here. It is specifically noted that the respondent has not denied that this exact advertisement appeared in the newspaper.

Even if, for the sake of argument, one were to assume that the advertisement was sourced from the respondent’s website, the mere presence of a disclaimer as alluded to by the respondent, makes no material difference to this.

In addition, the Directorate notes that the “disclaimer” relied on does not automatically appear when accessing the relevant advertisements. One has to actively scroll to the bottom of the respondent’s relevant webpage, select and click on the link titled “Disclaimer”, which then opens a separate window reading as follows:

“The advice contained here is for information purposes only. It is not intended as a substitute for advice from your doctor or other healthcare professional. You should consult with a healthcare professional before starting any diet, exercise or supplementation program, before taking any medication, or if you have, or suspect you might have, a health problem. You should not stop taking any medication without first consulting your doctor. This site and all information, content, materials, products and services included on or otherwise made available to you through this site are provided by Solal Technologies on an "as is" and "as available" basis, unless otherwise specified in writing. Solal Technologies makes no representations or warranties of any kind, express or implied, as to the operation of this site or the information, content, materials, products or services included on or otherwise made available to you through this site, unless otherwise specified in writing. You expressly agree that your use of this site is at your sole risk. To the full extent permissible by applicable law, Solal Technologies disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Solal Technologies does not warrant that this site; information, content, materials, products or services included on or otherwise made available to you through this site; their servers; or electronic communications sent from Solal Technologies are free of viruses or other harmful components. Solal Technologies will not be liable for any damages of any kind arising from the use of this site or from any information, content, materials, products (including software) or services included on or otherwise made available to you through this site, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in writing. The views and opinions expressed herein are those of the author and do not necessarily reflect the views of the employees, management, shareholders and/or directors of Solal Technologies or their subsidiaries.

The Adverts / Media Archive is intended to be used solely for reference, educational, research and/or non-commercial purposes and is not intended to reflect current advertising. Therefore all content (including any special offers) should not be construed as being up to date, accurate and/or current. This website and any orders placed using this website are subject to the above disclaimer and the stated Terms and Conditions”.

It consists of a total of 392 words, and the relevant portion, which the respondent is relying on, only starts at word number 328. It is therefore neither prominent nor prevalent, and it is disingenuous for the respondent to rely on this wording.

The Directorate also notes that there is currently a notice reading “All the adverts appearing below have been published and are older than 90 days”.

This appears to be no more than a poor attempt at sidestepping the requirements of the Code (refer Clause 3.3 of the Procedural Guide, which requires all advertising to be current and / or have been placed within 90 days of complaining). In fact, it is rather like an advertiser claiming to have a product that will treat AIDS, and then using a disclaimer which states that the claims should not be interpreted as efficacy claims but rather as the uninformed opinions of a few people that may or may not be correct.

Clearly the respondent’s website intends to promote these products for commercial gain. By keeping these advertisements on its website, it ensures that they remain “current”, as people are continuously able to access them, consider them, and arguably be influenced by them to buy the relevant product. This falls squarely within the definition of an “advertisement” contained in the Code, and clearly also meets the requirement for being “current” as intended in the Code.

It also deserves mention that the advertisements stored on the respondent’s website are in .PDF format, and have the markings of a design template (indicated by two thin, black lines at each corner, one pointing to the side and one pointing to the top, or bottom of the advertisement, depending on their location). The advertisement submitted by the complainant does not contain these markings, and therefore does not ex facie appear to emanate from the respondent’s website.

In light of the above, the Directorate rejects the respondent’s argument that the advertisement does not fall within the jurisdiction of the ASA.

Secondly, the respondent’s convoluted argument over the bona fides of the complainant holds no water.

The argument put forward by the respondent is effectively based on its perception that the complainant is complaining on behalf of the TAC, who in turn have a commercial motive.

Firstly, there is nothing before the Directorate to suggest that the complainant is acting for, or on behalf of the TAC. In Alcat Test / HA Steinman / 12001 / 12307 (11 June 2009), the Advertising Standards Committee, dealing with an appeal of a Directorate ruling, had to consider whether the complainant in that matter, Dr HA Steinman, met the criteria of a “competitor complaint” in terms of the Code. The ASC ruled as follows:

“In the instant case, although it may have been suggested by the Respondent, there is no evidence before us to suggest that in lodging the complaints the Appellant [Dr Steinman] was acting on behalf of any competitor to the Respondent. The fact that the Appellant may have ties with various entities in the industry does not mean that he was acting as their agent in lodging the complaints. The Appellant states that in lodging the complaints he was acting on his own behalf and in his own right as a concerned citizen. In the absence of any evidence to the contrary, we accept this submission and accordingly must decide the matter on the basis that the complaints were lodged by the Appellant in his own individual capacity”.

Likewise here, the respondent has not submitted a shred of evidence that shows that the complainant has any commercial ties with the TAC, was instructed by the TAC, or is attempting to protect any commercial interest of the TAC. It is also worth noting that the ruling in the matter Solal Technologies Healthy Fast Foods / M Low / 16575 (15 December 2010) dealt with the very same issue, only in relation to a person employed by the TAC. Here too, this baseless allegation was rejected.

In subsequent correspondence, the respondent submitted an email detailing discussions between one of its directors, Mr Brent Murphy, and a TAC representative, Mr Nathan Geffen. This email appears to be part of a forwarded message from the respondent to its attorney, which states “its official, TAC/Steinman/Jobson are in bed with the TAC”. The copy submitted contains a highlighted section reading as follows:

“… Solal has litigation pending against Harris Steinman and Roy Jobson or while a representative of TAC, Marcus Low, has complaints pending against Solal at the ASA”.

No explanation was given as to how this is relevant or how it applies to the complainant in this matter. As such, the Directorate attaches no weight to this.

Accordingly, the Directorate rejects the respondent’s argument that the complaint is a disguised competitor complaint.

The next concern relates to the omission of the complainant’s ID or passport number and his contact details. Here too, the Directorate notes, with concern, that the respondent effectively raised the same issue in Solal Technologies Healthy Fast Foods / M Low / 16575 (15 December 2010). In response, the Directorate noted as follows:

“When the ASA forwarded this complaint to the respondent, it concealed the complainant’s particulars as is standard procedure. This is done, inter alia, to prevent harassment from the respondent. The details concealed include Mr Low’s ID number, cell phone number and postal address, as well as his email address”.

It is unclear why the non-disclosure of this information is problematic for the respondent. Similarly, it is unclear why the respondent is again raising a superfluous issue of this nature. The decision to hide personal contact details from advertisers is of an operational nature, and is justifiable, given the potential for harassment in any dispute before the ASA. It also deserves mention that the respondent has, in previous matters (refer Solal Technologies Healthy Fast Foods referred to above for example) indicated that it does not hesitate to take legal action against complainants. This at least supports the operational decision to withhold contact information about complainants, because victimisation and intimidation would likely stifle future complaints.

For the above reasons, the respondent’s objection on this basis is rejected, and the Directorate is satisfied that the complaint meets the relevant criteria set out in the Procedural Guide, and is therefore a “valid” complaint.

Lastly, the Directorate turns to the merits of the complaint before it.

The only portions of the Code cited as relevant by the complainant, are Appendix A and Appendix F.

In the period between lodging the complaint, and the Directorate actually being able to rule on the merits, the ASA adopted a new, and completely different Appendix A. Aside from the fact that this appendix expressly stipulates that it excludes complementary medicines such as the respondent’s, it also no longer contains the specific provisions highlighted by the complainant (Clauses 5.1 and 8.21.1).

The Directorate therefore can no longer consider the complaint in terms of Appendix A. However, the provisions of Appendix F are still applicable.

In this regard the respondent again submitted a tortuous argument about the Directorate’s jurisdiction, or rather lack thereof, in relation to this appendix, with specific reference to specific laws of the country, and how they may impact on the ASA’s ability to rule on advertising for these products. The essential premise is that the Code incorrectly identifies the “owner” of Appendix F as the Medicines Control Council of the Department of Health, and creates an expectation that the ASA was entitled to administer this appendix on behalf of the Department of Health.

In Christ Embassy Church/ N Geffen / 14821 (28 April 2011), the Final Appeal Committee had to consider an argument very similar to that of the respondent. It held, inter alia, as follows:

“Clause 4 of the preface to the Code provides that: ‘This Code is supplemented by individual Codes which are determined by the various member organizations or negotiated with governmental institutions. These individual Codes are reflected in the appendices to the Code. All such Codes conform to the general principles laid down by this Code and differ only in detail where the individual needs are to be met.” The Code further provides that: “The individual Codes contained in the appendices are administered on behalf of the owner identified at the top of the first page of each appendix.’

The owner at the top of Appendix F is said to be the Medicines Control Council (MCC).

Ms Jansen argued that the contractual provisions of Appendix F need to be interpreted and applied in accordance with the provisions of the Medicines and Related Substances Control Act, 101 of 1965. She submitted that a conflicting interpretation would mean that the MCC negotiated and agreed to provisions in Appendix F, ultra vires its statutory mandate and such agreement could not contractually impose requirements that legally cannot be met. She further argued that section 18 C of the Medicines Amendment Act had not been complied with, as there had been no regulation relating to the marketing of medicines.

We do not agree with this submission. Assuming for the purposes of this matter that there is no regulation, and Appendix F is ultra vires, in the context of this matter these two issues are legally irrelevant. The appendix became a term of the contract between interested parties to the Code being a supplement to the Code.

That which is contained in Appendix F is therefore part of the Code and there has to be compliance with these terms by interested parties such as the parties in casu.

Appendix F provides that advertisements should not make or offer products, treatments or advice for several diseases which include heart troubles, cardiac symptoms. The focus of the advertisement was a 17 year old girl lying breathless on a bed on a stage. She says that she has been suffering from certain heart trouble for several years and a certificate which she says is from a doctor, points out that she is breathless and cannot carry on normal activities. One of the Pastors of the Appellant lays his hand on her. She suddenly jumps up and runs around the stage – healed. This is clearly a treatment on the ordinary meaning of the word and such treatment was not accorded a full product registration by the MCC.

We have concluded that the Code is clear as supplemented by Appendix F. One may not advertise a product or offer treatment or advice for heart trouble unless this accords with the full product registration by the MCC. It was common cause between the parties that this requirement was not met”.

By this reasoning alone, the respondent’s argument fails, and the Directorate is satisfied that the provisions of Appendix F are applicable, and can be enforced. The respondent has not made a compelling argument as to why this ruling by the Final Appeal Committee is not applicable, and the Directorate is not, at this time, of a mind to differ with this view.

In addition to this, the respondent questioned the ASA’s ability to restrict its constitutional right to free commercial speech.

The Directorate notes that the ASA Appeal Committee ruled as follows in AIG Life / R Booysen (31 May 2006):

“In terms of Section 36 (1) of the Constitution the right of freedom of expression may be limited to the extent that it is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

“The nature and extent of the limitation in casu is an international standard to prevent advertising that is not ‘legal, decent, honest and truthful’. The ASA Code follows the international standard in regard to misleading advertising. Vide the International Advertising Code as published by the International Chamber of Commerce and adopted by the European Advertising Association. The purpose of the limitation contained in 4.2.1 of the Code is that members of the public (consumers) should not be misled in regard to any form of advertising. As in other countries, the advertising industry is self regulated and as such the ASA carries out a public function. The appellant through its association with the ASA is bound by contract not to breach the Code. There is, in the view of the committee, no less restrictive means to achieve the public purpose of ensuring that marketers do not mislead consumers.

“In order to ensure that the requirements of Section 36 (1) have been fulfilled so as to limit the right of freedom of expression, the different interests of the parties must be balanced and weighed up. For the appellant there is the freedom to express its direct marketing campaign while the consumer requires that advertising should not be such that it is likely to mislead. Public policy is in line with this requirement. In weighing these two interests up, the right of the appellant to freedom of expression must give way to its contractual obligation not to advertise in a manner which would be likely to mislead and the public interest that advertisers should not promote either their products or competitions in a manner likely to mislead or to abuse a consumer’s credulity.”

The Final Appeal Committee’s reasoning in relation to Clause 4.2.1 of Section II (Misleading claims) is similarly applicable to Appendix F. In short, the respondent’s right to freedom of expression must give way to its contractual obligation not to advertise in a manner that contravenes the provisions of the Code, and the public interest that advertisers should not promote their products by using such claims.

The conditions listed in the respondent’s advertisement are “…heart attacks, strokes, arthritis, diabetes and depression”. All of these, with the exception of “strokes” and “depression”, are listed in Appendix F.

The advertising claims “… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk of heart attacks, strokes, arthritis, diabetes and depression”, and then promotes the respondent’s product, indirectly implying that it contains the essential concentration of omega 3 to avoid such illnesses, or at best lower one’s predisposition for such illnesses. This is reinforced by the heading “Why omegas are so important and how to choose the safest one”.

Clearly this amounts to offering products and advice for the conditions such as arthritis, diabetes and heart attacks (listed as “Heart troubles, cardiac symptoms” in Appendix F).

The respondent has not commented on the merits of the complaint, and moreover has not submitted any evidence that its products accord with full registration and recommendation by the MCC as is required by this appendix.

In light of this, the respondent’s advertisement is in contravention of Appendix F.

Given the above:

The advertisement and relevant claims must be withdrawn;

The process to withdraw the advertisement and claims must be actioned with immediate effect on receipt of this ruling;

The withdrawal of the advertisement and claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;

The advertisement and relevant claims may not be used again in their current format.

The complaint is partly upheld.

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