Posted 07 December 2011
In Food Detective / H A Steinman / 15038 (26 March 2010), the Directorate ruled that claims on the respondent’s pamphlet distributed to healthcare professionals for its Food Detective kit were unsubstantiated. The respondent was instructed to withdraw the relevant claims and not use them again in future. In a subsequent ruling, dated 12 November 2010, a breach allegation lodged by the complainant was dismissed on the basis that the amended claims at issue were sufficiently different to those originally considered and ruled on to negate an argument of breach. In a letter dated 2 November 2011, the complainant lodged a new breach allegation against the respondent’s advertisement for Food Detective, as was seen in the programme of a recent Allergy Society of South Africa’s congress. The complainant submitted that the respondent continues to claim that the Food Detective is “an easy to use, rapid test for food intolerance” in breach of the original ruling.
Food Detective / HA Steinman / 15038
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Davies Diagnostics (Pty) Ltd Respondent
05 Dec 2011
In Food Detective / H A Steinman / 15038 (26 March 2010), the Directorate ruled that claims on the respondent’s pamphlet distributed to healthcare professionals for its Food Detective kit were unsubstantiated.
The respondent was instructed to withdraw the relevant claims and not use them again in future.
In a subsequent ruling, dated 12 November 2010, a breach allegation lodged by the complainant was dismissed on the basis that the amended claims at issue were sufficiently different to those originally considered and ruled on to negate an argument of breach.
SUBSEQUENT TO THE RULING
In a letter dated 2 November 2011, the complainant lodged a new breach allegation against the respondent’s advertisement for Food Detective, as was seen in the programme of a recent Allergy Society of South Africa’s congress. The complainant submitted that the respondent continues to claim that the Food Detective is “an easy to use, rapid test for food intolerance” in breach of the original ruling.
RELEVANT CLAUSES 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.
The respondent submitted that this test is sold worldwide and is manufactured by a very reputable company in the UK, owned by Omega Diagnostcs plc – a listed company. They are members of BIVDA (British In Vitro Diagnostic Association) and all products are CE marked.
The respondent argued further that around the world there are still some scientists that question the use of food "intolerance" tests as opposed to food "allergy" tests, and that the complainant seems to be one of those stalwarts. However, this should not prevent other people from having access to tests that may help them.
It submitted that the claim that the respondent is in breach of the ASA Directorate ruling of 26 March 2010 is not true as it had complied with any of its marketing material to remove comments about IgG testing, removed the SANAS logo, and removed the references to “extremely unwell”.
Issue was also taken with the complainant’s status as a consumer rather than a competitor.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At the outset it is noted with some concern that the respondent’s attempt and classifying the complainant as a potential competitor is somewhat disingenuous, given this issue was essentially already considered and disposed of in the ruling dated 12 November 2010. This issue therefore deserves no further comment at this time.
The essential question before the Directorate is whether or not the respondent’s newest advertisement is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally found unsubstantiated.
The pamphlet originally objected to was headed “FOOD DETECTIVE” and featured visuals of various fruits, milk and nuts.
The copy stated, inter alia, that “Sufferers of food intolerance frequently complain of lethargy and generally not feeling well …” It further stated, “Food Detective is an easy to use test for food intolerance that can be performed in your practice with results in just 40 minutes. It identifies food causing IgG antibody production which may be involved in food intolerance …”
As pointed out in the original ruling, the complainant objected to these claims on the basis that food intolerance symptoms are specific, and do not come by means of “lethargy and generally not feeling well”. In addition, the complainant argued that there was no accepted evidence that food intolerance can be tested with the respondent’s type of testing (IgG testing).
It should be noted that the respondent did not specifically address the breach allegation but argued the merits and efficacy of its product. The Directorate already dealt with the merits of this matter in its ruling dated 26 March 2010, in which it found the respondent’s claims to be unsubstantiated.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
On an objective reading of the latest advertisement, the hypothetical reasonable person would interpret it to mean that the respondent’s product is able to test specific food allergies, something which has not yet been substantiated. While the Directorate accepts that the exact claims used in the latest advertisement are not the same as those originally focussed on, the overall takeout message is still the same. As of yet, the respondent has not submitted any new substantiation for the Directorate to consider, and therefore would have no legitimate reason to assume that it could continue making efficacy claims.
In addition, unlike the advertising considered in the 12 November 2010 ruling, the current advertisement is not presenting the efficacy of the product as a POTENTIAL tool to “… identify foods which MAY be involved in food intolerances”. It is promoting it as a definite, “… easy to use, rapid test for food intolerance …” which “Tests for 59 common foods”.
It is therefore clear that the latest advertisement is in breach of the previous Directorate ruling.
Given the above, the Directorate is satisfied that the respondent’s current advertisement is in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.
However, the breach does not appear to be a flagrant and callous disregard for the Code as the complainant suggested. The Directorate cannot ignore the fact that the wording is different, albeit not to a sufficient degree. In addition, the breach allegation relates to advertising seen more than a year and a half subsequent to the original ruling.
The Directorate therefore does not believe sanctions are appropriate at this time, as the respondent does not, at this time, appear to be a habitual offender.
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 its efficacy claims with immediate effect and refrain from making such claims until such time as adequate substantiation in accordance with Clause 4.1 of Section II of the Code has been submitted, evaluated, and a new ASA ruling issued.
The breach allegation is therefore upheld but no sanctions will be imposed at this time.