Biostrath – ASA appeal

Posted 27 August 2012

This is a somewhat complex ASA decision. The ASA had previously ruled that, inter alia, that the Biostrath’s claims made in relation to Attention Deficit Disorder / ADHD and “Immune Defence/Influenza” were unsubstantiated. The ASA ruled further that it could not consider the status of the product in respect of the reference to “wholefood herbal supplement”. The consumer complainant lodged an appeal against this ruling. In response to the notice of appeal Biostrath submitted that it would amend the packaging of Bio-strath and remove reference to “wholefood herbal supplement”. 

 

SANP Bio-Strath / R Jobson (ASC)
Ruling of the : Advertising Standards Committee
In the matter between:
R Jobson Complainant(s)/Appellant(s)
SA Natural Products (Pty) Ltd Respondent

20 Aug 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6226

INTRODUCTION
The complainant lodged a multi-faceted complaint with the ASA against the packaging and insert of Bio-strath. On 6 March 2012, the Directorate accepted the respondent’s voluntary undertaking to abide by Dr Van Valden’s recommendations to amend its advertising in a manner that addressed the concerns raised. The Directorate also ruled, inter alia, that the respondent’s claims made in relation to ADD / ADHD and “Immune Defence/Influenza” were unsubstantiated.

The Directorate ruled further that it could not consider the status of the product in respect of the reference to “wholefood herbal supplement”. The complainant lodged an appeal against this ruling.

In response to the notice of appeal the respondent submitted that it would amend the packaging of Bio-strath and remove reference to “wholefood herbal supplement”.

The Directorate took the view that it was functus officio in respect of the voluntary undertaking. It referred the matter to the Advertising Standards Committee (“the Committee”) for consideration in terms of clause 8.5 of the procedural guide.

At a meeting of the ASC held on 29 May 2012 the Committee considered whether the voluntary undertaking in respect of the new packaging for Biostrath was adequate.

The complainant, Professor Jobson, appeared at the hearing in person and Biostrath was not represented.

At the hearing Professor Jobson was afforded an opportunity to present his case. He was specifically also called upon to comment on the appropriateness of the new packaging.

THE AMBIT OF THE APPEAL
The fundamental issue before the Committee is whether or not SANP’s voluntary undertaking in respect of the new packaging for Bio-strath was an adequate response to the issue raised in the appeal, namely the challenge to the use of the words “wholefood supplement”.

As a response to the notice of appeal, SANP have undertaken to remove reference to “wholefood supplement” on its packaging and have substituted it with the words “Daily Nutritional Supplement”.

Professor Jobson was asked to respond to this proposed change. He provided a detailed response which, regrettably traversed many other grounds for complaint.

In this regard we find that any reference to issues which fall outside the ambit of the initial appeal cannot be entertained in these proceedings. The complainant is free to lodge a new complaint in relation to these issues. In this regard we point out that in terms of clause 9.1 of the Procedural Guide, the Committee is required to rule on complaints referred by the Directorate or an appeal by any party. Since the complaints raised by Professor Jobson which fall outside the appeal have not been referred by the Directorate, the Committee cannot consider these issues. We accordingly decline to consider those issues.

The issue before us is thus a confined one, namely whether or not the use of the words “daily food supplement” is appropriate or not.

Professor Jobson objects to the use of the words “daily food supplement” on the basis that:

The term is not recognized in the current health legislative framework;
The claims contained on the face of the packaging “define” the product as a medicine and not as a “nutritional supplement.”

In response SANP contends that it is common practice to refer to supplementary products, which are not food, but which offer supplementary vitamin or nutritional options as “nutritional supplements”. These products include complementary and registered products.

In support of this contention SANP rely on the MIMS 2010 guide for ‘over the counter’ medicines. In this guide there is a whole section dealing with “nutritional supplements”. SANP also point out that in a previous ASA decision in Adco-Simvastatin / Pfizer / 682 (11 February 2004) the ASA accepted MIMS as a credible and independent source of information regarding medicines.

SANP therefore argue that it is clear that it is acceptable to refer to a “nutritional supplement” and that the reasonable person would be familiar with the use of this type of phrase.

OUR RULING
Having regard to the input of both Professor Jobson and SANP we find that it is not necessary to confine an advertiser to refer to a product purely with reference to its proper pharmacological classification in accordance with the relevant legislation. Instead, we agree with SANP that it is appropriate to refer to products with reference to ordinary language provided that the advertiser can demonstrate:

That the language used is legitimate in that it corresponds with the composition of the product concerned; and

That the language used would be understood as such by the average, reasonable consumer.

We are satisfied that in the present matter SANP has met these two criteria in that:

It has demonstrated that Bio-strath is a nutritional supplement; and

That the term “nutritional supplement” is commonly used (as demonstrated by the MIMS OTC 2010 guide) and will be understood by the average reasonable person.

In these circumstances we find that the undertaking by SANP Bio-strath to change their packaging in response to the complaint by Professor Jobson is an appropriate to resolve the complaint.

 

 

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