Another ASA Solal ruling

Posted 5 July 2011

A consumer laid a complaint with the ASA against Solal Technologies for claims being made on an advert for "Healthy fast foods". Although the ASA dismissed a part of the complaint based on the fact that Appendix A had changed, (on which the complaint was based), it did uphold the complaint against Solal's unsubstantiated claim of "prescribed by doctors recommended by pharmacists". In other words, for this claim to be true the ASA held that it would need to be generally true as opposed to being applicable only to some doctors and pharmacists.

Although this is a significant ruling on one of the company's slogans, the claims that did not get addressed (for technical reasons) include the unproven statements that "diet does not supply all our nutritional needs" and that skin cells can resist "premature" ageing if provided with "all the nutrients they need". It would be interesting to see what evidence was offered (if any) to substantiate these claims. But perhaps the focus on other issues was just an avoidance tactic by the respondent (Solal) so that they did not have to provide any evidence for the claims they made. 

Solal Technologies – Healthy Fast Foods / M Low / 16575
Ruling of the : ASA Directorate
In the matter between:
Marcus Low Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

29 Jun 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5622

 Mr Low lodged a consumer complaint against the respondent’s print advertisement that appeared on its website www.solaltech.com, and also allegedly in the Shape magazine prior to that.

The advertisement shows a female doctor, and is headed “Healthy fast foods”, below which images of products from the Solal range appear. The advertisement is cluttered with information and claims, of which the following were specifically disputed by the complainant:

“Diet does not supply all our nutritional needs, so get the super nutrients needed in a quick and easy, delicious health shake”.

“A delicious superfood for complete skin, hair and nail nutrition SOLAL’s Beauty Shake”

“If your skin cells are provided with all the nutrients they need … they will … resist premature aging”.

“PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS”.

COMPLAINT
In essence, the complainant submitted that these claims are in contravention of various provisions contained in Appendix A of the Code.

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 of Appendix A (Unacceptable claims: Particular products, treatments, symptoms and conditions) [relates to an earlier version of the Code, which has since been amended]

Clause 4.1 of Section II (Substantiation)

RESPONSES
Initially, Stefan Vos Marketing Regulation Advisors, on behalf of the respondent, took issue with the fact that the complainant is affiliated with the Treatment Action Campaign (the TAC) and that the complainant had a similar “stylometry” to Dr Harris Steinman (a consumer-advocate who frequently lodges complaints) and Mr Kevin Charleston (another consumer who also makes use of the ASA in disputes of this nature).

These objections were dismissed by the Directorate in a ruling issued under this reference on 15 December 2010.

Since then, the respondent has raised several objections not only in relation to the complaint, but also about the ASA’s jurisdiction (or lack thereof) in this matter. This gave rise to a series of extensions and correspondence on the file as well as in other matters where complaints were lodged against the respondent’s advertising.

Ultimately, the respondent’s final response on the merits came via its attorneys, Fluxmans Inc, who, aside from addressing the merits to some extent, advised that it would approach the relevant Court to interdict the ASA from ruling on the matter. At the time of ruling, however, no such interdict had been obtained or furnished.

In a later response, the respondent 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 was 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 is a TAC representative who in turn, according to the respondent, 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 (which was raised by similar complaints in different matters). 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 is not current for the purposes of the Code. It is specifically noted that the respondent has not denied that this exact advertisement appeared in the Shape magazine around the time of the complaint. In fact, in its letter dated 8 June 2011, the respondent appears to concede that this is the case. It states “Low does not contend to have read the 7 October 2010 edition of Shape Magazine or even have it in its possession. As appears more fully below, Low ascertained the fact of and date of publication (on 7 October 2010) of the advertisement in Shape Magazine from Solal’s website …”. Given that the complaint was lodged with the ASA on 8 October 2010, and forwarded to the respondent on 18 October 2010, the requirements of Clause 3.3 insofar as being “current” advertising are adequately met.

Even if 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.

In light of the above, the Directorate rejects the respondent’s argument that the advertisement does not fall within the jurisdiction of the ASA for reasons of procedural non-compliance.

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.

It is disconcerting to note that this exact issue was raised, and dealt with in the Directorate’s ruling of 15 December 2010 on this file. The respondent has not appealed that ruling, and as such the Directorate cannot deviate from its finding in this regard. If the respondent believed that its latest submissions could overturn the Directorate’s initial ruling on this issue, it should have filed an appeal as per the proper procedure. It has not done so.

In subsequent correspondence, the respondent also 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 matter had hand. As such, the Directorate attaches no weight to this.

Accordingly, the Directorate again 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 its initial response, and this was dealt with by the Directorate in the ruling issued on 15 December 2010.

As such, the Directorate again rejects this disingenuous approach of raising issues that have no relevance purely for the sake of raising issues.

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 contained in Appendix A and also the General Principles section, generally identified as Section II.

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 in his complaint.

The Directorate therefore can no longer consider the complaint in terms of Appendix A.

However, the complainant also submitted that “The advertiser must provide SUBSTANTIATION for these claims” (our emphasis).

In Christ Embassy Church/ N Geffen / 14821 (28 April 2011), the Final Appeal Committee had to specifically consider whether or not the requirement for substantiation as contemplated in the Code was implicit in the complaint, which read “The advert claims to treat various diseases using faith healing. In particular the advert makes reference to heart and cardiac problems. The claim to be able to treat these diseases using faith healing is unsupported. Claiming to be able to treat heart diseases is in breach of Appendix F of the ASA Code.” It ruled as follows:

“It is clear from a reading of this complaint to the reasonable reader that the complainant is asserting that the treating of heart problems in particular is an unsupported claim in the advertisement.

The Appellant contended that the complaint was expressed too widely and did not comply with clause 3.1.3 of the Procedural Guide, in which a complaint must be clearly stated, and if possible the sections of the Code identified. The section goes on to say that should the complainant not do so, the ASA will consider the complaint in terms of the sections it regards as relevant and deal with the complaint as if it had been lodged in terms of those sections.

The ASC and the Appellant dealt with Clause 4.1 of Section II at the ASC hearing and the Appellant did so without demur.

It is a fundamental principle of justice that a person affected by a decision should be given an opportunity to be heard or to defend himself or herself before such decision is taken. The corollary of the right to be heard is the right of the affected person to be given reasons, that is, to be informed of the substance of allegations relied upon so that he or she can have an opportunity to controvert such allegations. Without reasons being given the right to be heard may be illusory.See Kloppenburg N O v Minister of Justice 1964 (1) SA 813 (D&CLD) at 818B; Arapee Industries Ltd v CIR 1993 (2) SA 216 (N) at 220F-I.

The Appellant submitted that there was a failure of natural justice in that sufficient particularity of the complaint was not furnished. We do not agree because read in the context as a whole, the core of the programme was the young girl suffering from heart trouble and being cured of her heart trouble. The substance of the complaint was set out by the Respondent: ‘In particular the advert makes reference to heart and cardiac problems ….. claiming to be able to treat heart disease is in breach of Appendix F of the ASA Code.’

We have consequently concluded that there was nothing procedurally unfair by the ASC referring to Clause 4.1 of Section II”.

Likewise in this matter, the complainant specifically called for substantiation in his complaint. He stated that “The lines ‘prescribed by doctors’ and ‘recommended by pharmacists’ implies widespread endorsement of the rest of the advertisement. It is questionable whether significant numbers of doctors will prescribe these products, or agree with the statements made in the advertisement. The advertiser must provide substantiation for these claims”.

From this it is clear that the complainant doubts the veracity of the respondent’s claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS”. Following the principle highlighted in the Christ Embassy Church ruling quoted above, the Directorate is satisfied that the complaint is sufficiently clear in this regard, and required the Directorate to consider the relevant claim in terms of the clause dealing with substantiation, being Clause 4.1 of Section II.

The Directorate agrees that the claims imply that doctors prescribe the respondent’s products, and that pharmacists recommend the respondent’s products to people. This is clearly capable of substantiation as contemplated in Clause 4.1 of Section II. The respondent did not submit any substantiation to verify this.

Accordingly, the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” is currently unsubstantiated and in breach of Clause 4.1 of Section II.

Given the above:

This claim must be withdrawn;

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

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

The claim may not be used again in their current format in future.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

The complaint is partially upheld.

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