ASA Ruling: Echinaforce

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A complainant, lodged a complaint regarding a newsprint advertisement for Echinaforce which appeared in the Sunday Times on 27 February 2011, and also about a similar advertisement for the same product on the website, www.sanatural.co.za, which, according to the complainant, repeated and expanded on these claims.

In essence, It was submitted, inter alia, that the website still claims, “Dr Alfred Vogel’s Echinaforce inhibits bird flu (H5N1), swine flu (H1N1), seasonal flu more effective than oseltamivir!” and “In the first round, effective against 97,85% of the viruses”.

Echinaforce / S Kaye / 15677

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5541

Ruling of the : ASA Directorate

In the matter between:

Sydney Kaye Complainant(s)/Appellant(s)
SA Natural Products (Pty) Ltd t/a SANP Respondent

26 Apr 2011

BACKGROUND

In Echinaforce / S Kaye / 15677 (13 August 2010) the Directorate considered the respondent’s advertising which was published in the Lifestyle Magazine in the Sunday Times during May 2010.

The advertorial contained, inter alia, the claims “A. Vogel Echinaforce proven in-vitro to inhibit Swine Flu, Bird Flu and Seasonal Flu”, and “in the first round Echinaforce was effective against 97.85% of the viruses”. Reference was made to a research study by Prof. Stephan Pleschka of Giessen University, Germany and Prof Jim Hudson of British Columbia University, Vancouver, which was presented by Dr Andy Suter of the A. Vogel Company, as well as Echinaforce’s prophylactic and antibacterial qualities.

The Directorate held that “… in the absence of unequivocal verification from an independent and credible expert, the claims ‘A. Vogel Echinaforce proven in-vitro to inhibit Swine Flu, Bird Flu and Seasonal Flu’ and ‘… Echinaforce was effective against 97.85% of the viruses …’ are currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code”.

The respondent was instructed to withdraw the above claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use them again in their current format.

SUBSEQUENT TO THE RULING

Another complainant, Mr Kevin Charleston, lodged a complainant regarding the respondent’s newsprint advertisement for Echinaforce which appeared in the Sunday Times on 27 February 2011, and also about a similar advertisement for the same product on the website, www.sanatural.co.za, which, according to the complainant, repeated and expanded on these claims.

In essence, It was submitted, inter alia, that the website still claims, “Dr Alfred Vogel’s Echinaforce inhibits bird flu (H5N1), swine flu (H1N1), seasonal flu more effective than oseltamivir!” and “In the first round, effective against 97,85% of the viruses”.

The complainant further raised issues in relation to claims made on the website and the respondent’s package insert, which did not form part of the original Directorate ruling. The Directorate did not, however, at this time ask the respondent to address these claims, as this would form part of a new investigation and result in a new ruling.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

RESPONSE

The respondent, inter alia, acknowledged that the two claims were inadvertently not removed from the website. This was due to an oversight. However, they were immediately removed upon receipt of Mr Charleston’s breach complaint.

The respondent explained that immediately after receipt of the initial Directorate ruling, 40 000 pamphlets and newspaper advertisements were withdrawn and detailed studies were no longer referred to on any radio shows. Copies of newspaper advertisements and radio talk shows referring to these studies or claims were removed from its website, and a television infomercial explaining the research and results, which was already in the post production stage, was halted. Training managers were also instructed to stop relying on these claims and the relevant research in their training courses.

It submitted that at all times it intended to adhere to the ASA Directorate ruling, and that the imposition of sanction is not justified.

In addition to this, the respondent submitted new substantiation in the form of a letter from Andreas G Schwapowal MD, PhD, DSc (hon), a Specialist in oto-rhino-laryngology, allergology and clinical immunology in Switzerland.

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation as submitted by the respective parties.

The Directorate is currently only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. Any contention regarding the new claims not previously considered will be the subject of a new complaint and ruling.

Similarly, there are specific procedures involved when considering new substantiation, which involves affording the complainant an opportunity to consider and comment on the new substantiation. This procedure will clearly result in a new ruling by the Directorate, and as such is a separate issue. The Directorate will accordingly not consider the new substantiation as part of this ruling.

It is common cause that at the time of the breach complaint the claims ruled against appeared on the respondent’s website, in contravention of the original ruling. While the respondent immediately took action to remove them, this action is belated, and only came subsequent to the breach allegation.

Given the above, it is clear that the respondent was in breach of Clause 15 of the Procedural Guide.

However, it appears that this breach occurred as a result of oversight, rather than deliberate disregard. The respondent clarified the extent to which it went in complying, such as withdrawing 40 000 pamphlets, as well as newspaper advertising and other material, including halting production of an infomercial. The advertising appearing on the website is therefore the only indication of a breach.

Given this, and given the respondent’s extensive efforts to comply, the Directorate does not believe any consideration of additional sanctions is warranted at this time.

The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide. This ruling may also be taken into consideration at such a time.

The respondent is again instructed to permanently remove the relevant claims from its website with immediate effect. Only if the newly submitted substantiation is accepted in the form of a Directorate ruling, will the respondent be able to continue using these claims.

The breach allegation is upheld.

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