Posted 11 September 2013
A consumer referred to the claims for this product, listed below, stating that: “The advertiser has presented these claims above as true – as an expression of opinion. These claims are largely false or not possible for the advertiser to substantiate.”
The ASA agreed with numerous aspects of the complaint.
[gn_note color=”#ffeb99″]Biolife Joint Support / K Charleston / 22111
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Biolife cc Respondent[/gn_note]
Mr Charleston lodged a consumer complaint against a print advertisement for the respondent’s “Joint Support Glucosamine Chondroitin MSM” that appeared in the Cape Times during March 2013.
The advertisement contains, inter alia, an image of the product bottle along with a heading “Osteoarthritis” and the following claims:
“Lately much has been written about the need to change drugs if one has been on a biphosphonate medication for 5 years or more. It is believed the biphosphonates could cause duodenal ulcers”
“There are also alternative medicines that are effective in reducing the pain and inflammation …
Glucosamine Sulphate: 800mg to 1600mg daily depending on severity helps the formulation of bones, cartilage, tendons and synovial fluid and is believed to reduce pain
Chontroitin Sulphate: 400mg to 800mg daily together with Glucosamine are two molecules that make up the type of cartilage that is found within joints
Methylsulfonylmethane (MSM). This organic sulphur which helps to reduce inflammation and also repairs tissue.
Herbs that may help include devil’s claw, nettle leaf boswellia and celery.
Fish Oil 1000mg to 3000mg daily depending on severity: Helps to lubricate and increase the production of anti-inflammatory prostaglandins”.
“The following combination is certainly worthwhile trying.
Biolife Joint Support formula, which contains most of the above-mentioned except for the Fish Oil.
Biolife Fish Oil capsules 500mg.
Biolife Multivitamin (Capsule made from soyabean oil)”.
A Biolife believes the regime describe above, if taken REGULARLY, will make a big difference to whatever discomfort you experience daily.
The complainant referred to the claims listed above, stating that:
“The advertiser has presented these claims above as true – as an expression of opinion. These claims are largely false or not possible for the advertiser to substantiate. This is puffery (Section II Clause 4.2.2).
By presenting these statements as opinion, the advertiser is attempting to avoid the requirement for substantiation. An advertiser cannot be allowed to make claims of a scientific nature and escape the requirement for substantiation – merely by inserting ‘We believe’ in front of them. Science is not a belief – it is about proof and substantiation, testing and observation.
The advertiser mixes these ‘fake-opinions’ in with facts – and is thereby attempting to deceive consumers into assuming the advertiser has some scientific expertise …
The claims above all require substantiation …”
The complainant then provided URLs as reference to various studies which illustrate that the individual ingredients (i.e. Glucosamine sulphate, Chondroitin, MSM and Fish Oil) have had little or no efficacy proven in studies.
He concluded that “Even if all of the above claims were individually true, the requirement for product-specific substantiation means that the combination of these products as sold – must have the claimed effect of a ‘big difference to whatever discomfort’ an OA sufferer experiences. That is a testable claim and must be substantiated”.
In another paragraph, the complainant noted that the claim “It is believed that biphosphonates could case duodenal ulcers” is largely irrelevant, because biphosphonates are generally prescribed for Osteoporosis, and not Osteoarthritis.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:
• Section I, Clause 4.25 (Statistics and scientific information).
• Section II, Clause 4.1 (Substantiation)
• Section II, Clause 4.2.1 (Misleading claims)
• Section II, Clause 4.2.2 (Puffery)
The respondent took exception to the complainant’s view, and denied the implication that it was trying to deceive the public.
It conceded that much of its research is from empirical evidence and that of many doctors and orthopaedic surgeons who prescribe Glucosamine products and combinations, and referred to some examples. It added that alternative products have a long history of controversy, and for every positive article or clinical trial, a negative one could likely be found. It would appear that the complainant only focuses on the negative results.
It noted that the claim that Fish Oil increases prostaglandin production was a typing error, which will be corrected to explain that it “decreases” prostaglandin. Similarly, the paragraph dealing with Biphosphonate will be removed. Insofar as MSM was concerned, it insisted that this is often sold in combination with glucosamine and/or chondroitin for treating osteoarthritis.
The respondent insisted that there are many articles showing the benefit of combination products (various URLs were supplied as references). The point was also made that the efficacy of the relevant herbs is not claimed as a matter of fact, but rather as a possibility. Three references were provided to illustrate the potential benefits claimed.
It would be beneficial if the complainant could bring any concerns to the attention of the respondent for possible correction (if needed), as opposed to lodging complaints without properly researching the products / ingredients. The main purpose of the advertisement was to highlight “… an alternative to the non steroidal anti-inflammatory drugs that could cause gastrointestinal problems with extended usage”.
The respondent also submitted copies of the various research articles relied on in support of its claims.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The respondent undertook to remove the paragraph dealing with biphosphonates.
As this appears to address the allegation that the claim “It is believed that biphosphonates could case duodenal ulcers” is largely irrelevant, the Directorate accepts the respondent’s undertakings on condition that the claims are removed with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not used again in future.
Similarly, the respondent acknowledged that the claim “Fish Oil … increases the production of anti-inflammatory prostaglandins” should have read “Fish Oil … decreases the production of anti-inflammatory prostaglandins”. The respondent thanked the complainant for pointing this out, and undertook to amend this immediately.
Again, this undertaking would appear to address the concerns raised in relation to this specific claim. The Directorate therefore accepts the undertaking as an adequate resolution on condition that the claim is appropriately amended within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
Clause 3.2 of Section I reads as follows:
“In assessing an advertisements conformity to the terms of this Code, the primary test applied will be that of the probable impact of the advertisement as a whole upon those who are likely to see or hear it. Due regard will be paid to each part of its contents, visual and aural, and to the nature of the medium through which it is conveyed”.
Before the Directorate is able to determine whether or not the advertisement is in contravention of the Code, the question has to be asked how a hypothetical reasonable person would interpret the advertisement.
The advertisement starts out by explaining what arthritis is, and what symptoms one could expect. It alludes to the fact that allopathic medicines are available, but that these might come with some inherent complications (it is noted that the respondent will amend this to some extent). After this, it refers to certain “alternative medicines” that have “… helped many customers who have used them …” Finally, it promotes the respondent’s combination of products (which contains most of the aforementioned alternative medicines) and emphasises that it believes that “… the regimen [of the respondent’s products] … if taken REGULARLY, will make a big difference to whatever discomfort you experience daily”.
On the face of it, one could be forgiven for ignoring the references to Glucosamine Sulphate, Chondroitin Sulphate, MSM, Herbs and Fish Oil because they appear to be discussed in isolation, with no specific indication that the benefits attributed to each of these would necessarily apply to the respondent’s product.
However, when having regard for the entire advertisement, following its logic and tone, it becomes apparent that the underlying premise is that these products have yielded positive results for “… many customers …” and that the respondent offers a range of products that effectively combine these products. The respondent also pertinently makes the point that it believes that taking its combination of products “REGULARLY” will alleviate whatever discomfort one might be experiencing in relation to Osteoarthritis or Arthritis.
Objectively speaking, this means that the respondent’s claims are capable of substantiation as envisaged in Clause 4.1 of Section II of the Code. This Clause requires unequivocal verification from an independent and credible expert in the field to which the claims relate.
Consumers would appreciate that the essential purpose for placing advertising is to generate sales or support. By communicating efficacy (even if done more subtly as is the case here), the advertising undoubtedly implies that its product combination will deliver tangible results and relief similar to what is claimed.
The fact that the claimed benefits are punted as potential benefits (the respondent uses words such as “… is believed to reduce pain …”, “… may help …” and “A Biolife spokesperson believes the regimen … will make a big difference …” does not negate the need for objective substantiation.
While the Directorate acknowledges that the respondent has submitted various articles and studies from various sources, it has not submitted independent verification from a credible expert in the field of Osteoarthritis or Arthritis to verify that the claims made in the advertisement are accurately and fairly corroborated by the relevant studies. In addition to this, there is also no expert verification that the respondent’s product combination would deliver said results.
Accordingly, the respondent’s advertisement is currently in breach of Clause 4.1 of Section II of the Code.
The respondent is instructed to:
Withdraw the advertising and relevant claims,
Ensure that this withdrawal is immediately actioned upon receipt of this ruling,
Ensure that the advertising and relevant claims is removed within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and
Ensure that the advertising and relevant claims are not used again in future.
The complaint is partially upheld.