Dr Laithwaithe lodged a consumer complaint with the ASA against a print advertisement that appeared in the May edition of Fair Lady magazine. The advertisement is headed “Interesting facts about your health” and states, inter alia,“FACT 1: The eye damage that causes vision loss in old age, actually starts in early adulthood, or even younger”.
In essence, the complainant submitted that the advertiser makes claims for this product for which there is no medical evidence. How did the ASA rule?
SOLAL TECHNOLOGIES / JC LAITHWAITHE / 15765
Ruling of the : ASA Directorate
In the matter between:
Dr JC Laithwaithe Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
30 Aug 2010
Dr Laithwaithe lodged a consumer complaint against a print advertisement that appeared in the May edition of Fair Lady magazine.
The advertisement is headed “Interesting facts about your health” and states, inter alia,“FACT 1: The eye damage that causes vision loss in old age, actually starts in early adulthood, or even younger”.
The copy further states, “Everyday sunlight exposure causes a type of damage to the eyes known as macular degeneration. This damage accumulates over time and ultimately results in reduced vision and possibly even blindness in old age (known as ARMD: Age Related Macular Degeneration). This damage begins at a young age, even in childhood, but only manifests with reduced vision in old age. To protect your eyes, adults and children should wear UV-protective sunglasses outdoors during sunny days. You also need to begin supplementation with eye-protective nutrients from early adulthood.”
Readers are encouraged to start using this product “… from early to mid-adulthood” and that the product should be “… used on a regular daily basis thereafter, even in the absence of symptoms …”
In essence, the complainant submitted that the advertiser makes claims for this product for which there is no medical evidence. Age related macular degeneration does not affect non-white people and a large number of people will be lead to believe that they are at risk. In addition, the primary causal factor for this condition is genetic. As such, this expensive product may very well not benefit anybody, especially the majority of the population who are not even at risk.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
Section II, Clause 4.1 – Substantiation
Section II, Clause 4.2.1 – Misleading claims
Stefan Vos Marketing Regulation Advisers, on behalf of the respondent, submitted a letter from Dr Terry Grossman MD to confirm the claims made in the advertisement.
It added that Dr Grossman is not financially connected to Solal and provided the Directorate with a copy of his curriculum vitae. Dr Grossman has been practicing medicine in America since 1980 and as a homeopathic doctor since 1998.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II states, inter alia, that advertisers shall hold documentary evidence to support all claims that are capable of objective substantiation, and that such evidence shall emanate from or be evaluated by an independent and credible expert in the field to which the claims relate.
The respondent submitted an e-mail from Dr Terry Grossman which states, inter alia, “I have reviewed the wording within your advert and in my professional opinion as both a medical doctor (M.D.) and a homeopathic medical doctor (H.M.D.), all of the information contained within this advert is true and substantiated by solid studies published in peer-reviewed medical journals.”
Effectively the first question the Directorate has to answer is whether or not it is willing to accept Dr Grossman as an independent and credible expert in the field to which the advertised claims relate. Having regard for the principles established in the Final Appeal Committee’s ruling in the matter Homemark Slim Coffee / HA Steinman / 12988 (25 March 2010) the Directorate effectively needs to determine, inter alia, whether Dr Grossman has acquired not only theoretical knowledge but also practical experience in the field to which the claims relate, in this instance, eye care and degenerative eye diseases. It should be kept in mind, however, that these factors would become irrelevant if, for example, the Directorate were not satisfied that Dr Grossman is independent of the respondent.
The Directorate has certain reservations about the suitability of Dr Grossman in this particular instance:
Firstly, Dr Grossman is listed as a member of an advisory board to a publication named Health Intelligence (see http://www.solaltech.com/HQ_2%20teaser.pdf). This is a publication published by the respondent, and as such casts doubt over the independence of Dr Grossman.
Secondly, from https://grossmanwellness.com it appears that Dr Grossman is himself a promoter and distributor of supplements similar to those of the respondent. Some of the products promoted for sale on this website include cancer prevention products, detox products, weight loss products and anti-ageing products. This means that Dr Grossman has at least an indirect financial interest in having products such as these accepted in official disputes.
Finally, and perhaps most crucial to this debate, the Directorate notes that Dr Grossman is a medical doctor, which is akin to a general practitioner in South Africa and a homeopathic medical doctor. There is nothing before the Directorate, however to show that he has attained theoretical knowledge or practical experience in the field of eye care and more particularly degenerative eye diseases which is the field to which the claims relate. This is a specialised field of medicine, and the Directorate is not satisfied that a regular doctor who has not specialised in this field qualifies as a credible expert in a manner that the Code requires. At the very least, the respondent has not made out a case that this is so.
In light of the above, the Directorate does not accept Dr Grossman as an independent, credible expert in the field to which the claims relate. His submissions therefore cannot be used to substantiate the claims in question.
In light of the above, the claims made in the advertisement are currently unsubstantiated, and therefore in breach of Clause 4.1 of Section II. By virtue of this, the claims are also misleading and in contravention of Clause 4.2.1 of Section II of the Code.
Given the above:
All claims of this nature must be withdrawn;
The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;
The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
The claims may not be used again in its current format until new substantiation has been submitted, evaluated and a new ruling is made.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
The complaint is upheld.
For the guidance of the respondent the Directorate also draws attention to the provisions of Appendix F of the Code insofar as “Eyes, any structural or organic defect of the optical system” is concerned.