Posted 03 April 2012
In a ruling dated 29 June 2011 the Directorate ruled that the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” was unsubstantiated and had to be removed with immediate effect within the deadlines stipulated in the Code. In this ruling, "The previous ruling is therefore overturned insofar as the finding on the claim 'PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS' is concerned, and the respondent is entitled to continue using this claim."
However, a glaring problem with this ruling is that the survey data, which one would expect the complainant to have been allowed to view and comment on, was kept confidential. So we have to assume that the market research company, Catalyst, did a solid survey. What if they did not and what if the directorate does not have the expertise to know whether the survey was adequate? Were 10 doctors interviewed, or 200? What percentage agreed with the claims? Where do the doctors reside? Maybe only doctors subscribing to Solal's newsletter were surveyed? Only questions, no answers.
|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
03 Apr 2012
In a ruling dated 29 June 2011 under the above reference, the Directorate upheld an objection against the respondent’s advertisement for a range of its supplements including its Beauty Shake. Aside from a host of issues on jurisdiction and interpretation, the Directorate ultimately ruled that the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” was unsubstantiated and had to be removed with immediate effect within the deadlines stipulated in the Code.
SUBSEQUENT TO THIS RULING
The respondent submitted new substantiation in accordance with Clause 4.1.7 of Section II of the Code, hoping to overturn the above decision.
The new submissions were effectively the results of a research survey conducted by Catalyst as proof that the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” is fully substantiated.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the new substantiation Clause 4.1 of Section II of the Code was taken into account.
In keeping with procedure, the complainant was afforded an opportunity to comment on the evidence submitted by the respondent.
The complainant submitted, inter alia, that:
It had contacted SAMRA and was informed that Catalyst is not SAMRA accredited but Michael Charnas, who is an employee at Catalyst is an Associate member. The complainant further added that it is of the opinion that the report should not be considered to emanate from a SAMRA approved entity as it does not clearly state that it was produced by Michael Charnas.
Clauses 22.214.171.124 and 126.96.36.199 of Section II requires input from two separate SAMRA approved entities. The complainant also added that it is unacceptable for an entity conducting a research survey to confirm its own research.
The non-confidential summary sent to the complainant is devoid of any material information about the methodology and raw data, and as such makes it impossible to accurately determine its validity.
When the claim appears in advertising it is usually associated with the specific products featured. As such, the question arises whether or not the claim would be interpreted as a recommendation for those products specifically, rather than the respondent’s range in general.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the complainant.
At the outset the Directorate notes that the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” is clearly used as a general pay-off line, and would likely be understood as such by a reasonable person. This is evident from not only the fact that it is consistently used across the respondent’s advertising but also that it contains the “TM” at the end, indicating that it is a provisional trademark of some sorts, removing it from the realm of a product-specific claim as the complainant appears to have suggested. The Directorate therefore does not expect such endorsement to apply to each and every product within the respondent’s range.
Secondly, the Directorate accepts that the complainant was unable to obtain any material information from the non-confidential summary provided by the respondent. However, the Code specifically provides for documentation that meets specific criteria to be treated as and regarded as confidential. The Directorate agreed that the information initially submitted by the respondent qualified as confidential, which ultimately deserves appropriate protection in accordance with the Code.
The only remaining question is whether or not the substantiation is adequate in terms of the requirements of Clause 4.1 of Section II. This clause requires all survey-type data to either emanate from, or be evaluated by a SAMRA approved entity.
The complainant argued that the wording of the relevant clauses (Clause 188.8.131.52 and 184.108.40.206) requires one SAMRA accredited entity to do the actual research, and another to evaluate the accuracy of the claims. The respective clauses read:
“220.127.116.11The survey shall emanate from an entity approved by, or acceptable to, the Southern African Market Research Association, and
18.104.22.168 The accuracy of the claims based on the survey shall be confirmed by an entity approved by, or acceptable to, the Southern African Market Research Association”.
The Directorate does not share the complainant’s view in this regard, and sees no reason why a research entity which is independent of the respondent, but recognised by SAMRA cannot conduct and verify the research at issue.
In Tresemme / Procter & Gamble / 12420 (30 November 2009), the Final Appeal Committee (the FAC) considered the claim “Used by Professionals”. In accepting substantiation that emanated from a SAMRA approved entity (who also appears to have conducted the research), the FAC ruled as follows:
“The Appellant filed evidence by Synovate, a recognised market survey agency in South Africa, which recorded that it had conducted a survey in March 2009 among a sample of professional South African hair salons and that the results of the survey established that over the past three months, TRESemmé products (shampoos and/or conditioners) were ‘used by only 8% of professional hairstylists on themselves and only 7% of professional hairstylists on their customers’. This evidence must be seen in the context of the high degree of fragmentation in the salon sector of the hair care market in South Africa as appears from the evidence before us. There is a low percentage market share held even by the leading three or four brands. Consequently, the 7–8% usage of TRESemmé products indicated by Synovate proves that there is not an insignificant use of TRESemmé products by professional hairstylists.
Further, there were several affidavits filed by the Respondent from professionals who conduct their own hair styling businesses, from various places in South Africa, such as Natal, the Cape, Midrand and so on, in which they state that they were using the TRESemmé products in their salons at the time of the advertisements.
The accumulation of that evidence would, in our view, amount to substantiation of a subliminal or implied claim of ‘used by a significant number of professionals’.
In this matter, Catalyst conducted the relevant research, and outlined (in its confidential submissions) the nature and methodology used, as well as the findings. Its Managing Director, Mr Michael Charnas confirms unequivocally that the market survey and internal information held by the respondent confirms this claim as true.
As with the Tresemmé matter discussed earlier, the Directorate does not believe the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” implies that ALL doctors and ALL pharmacists do so. The evidence at hand, however, suggests that the portion that does justify this claim is not insignificant to a margin that would negate the claim.
The only remaining question is whether or not the Directorate is able to accept verification from Catalyst when only Mr Charnas is a registered SAMRA member. In this regard, the complainant mentioned that Catalyst as a company is not a SAMRA member, and that only one of its employees, Mr Michael Charnas is. It should be noted that the report submitted indicates that Mr Charnas is the Managing Director of Catalyst.
In Radox Showerfresh / A McKeon (12 September 2007), the Directorate considered and accepted substantiation for survey-type data which emanated from Red Sky Integrated. Insofar as membership is concerned, the Directorate received confirmation from SAMRA that once a company individual has been a SAMRA member for 12 months, the company becomes eligible for membership. The Directorate also noted:
“In addition, it is noted that the mere fact that Red Sky, or at least its Research Director, is a SAMRA member implies that the research methodology was scientifically sound and can be relied on for the purposes of this matter. The Directorate therefore has no reason to doubt the veracity of the findings or the methodology used”.
In keeping with this, the Directorate is satisfied that the fact that Mr Charnas, the Managing Director of Catalyst confirms the veracity of the research adequately satisfies the requirements of the Code. It is also noted that Catalyst has been accepted as a SAMRA approved entity, for the purpose of Clause 4.1 of Section II on other matters before the Directorate.
Based on this, the Directorate is satisfied that the documentation emanating from Catalyst, and signed off on by its Managing Director, Mr Charnas, who is a full SAMRA member, adequately meets the requirements of Clause 4.1.3 of Section II of the Code.
Given that Mr Charnas unequivocally verifies the claim at issue, the Directorate is satisfied that the substantiation complies with the requirements of Clause 4.1 of Section II of the Code.
The previous ruling is therefore overturned insofar as the finding on the claim “PRESCRIBED BY DOCTORS RECOMMENDED BY PHARMACISTS” is concerned, and the respondent is entitled to continue using this claim.
It is noted, however, that during October 2011, another complainant, Mr Kevin Charleston, lodged a breach allegation against some of the respondent’s advertising carrying this claim. At the time, the Directorate, at its absolute discretion, suspended the investigation of the breach allegation in order for the considerations on the new substantiation to be finalised. Before Mr Charleston was advised of this, he lodged a second breach allegation. He has since been informed of the suspension pending the outcome of the Directorate’s consideration of the new substantiation submitted.
Given that the new substantiation has now been ruled on, the only remaining issue is whether or not the respondent was in breach of the ruling dated 29 June 2011.
Based on the above decision, the breach allegations that were submitted on 4 October 2011 and 31 October 2011 by Mr K Charleston will therefore not be investigated as they were based on the the ruling dated 29 June 2011 which has now been reversed.