Posted 14 June 2014
SevenPointFive advertises that “live blood analysis” can be diagnostic of a range of conditions. We say that this is a scam and has no physiological basis. A complaint was laid with the ASA and SevenPointFive requested to prove their claims. They could not. The ASA ruled against their claims.
21 May 2014
Dr Steinman lodged a consumer complaint against the SevenPointFive website advertising appearing on www.sevenpointfive.com.
The advertising promotes the respondent’s “Live Blood Analysis”, and states, inter alia, the following in different sections of the website:
“Sevenpointfive works to get your body to its ideal pH, about 7.5, slightly alkaline. Only then can you start to feel better”.
“First, you need to find out what is wrong. We use Live Blood Analysis to see exactly what is happening in your body right now”.
A testimonial stating “I beat lupus after suffering for 8 years”.
“The Live Blood Analysis involves a pin prick of blood taken from your finger and placed on a microscope. We then have a look for imbalances, deficiencies and problems in your body”.
A picture of blood cells clumped together, with the caption “In this picture the red cells are all clumped together, the white cells are much smaller than the red cells, and the lines in the open spaces indicate liver stress. An unhealthy picture, and yet a common one.”
In essence, the complainant found the advertising misleads consumers by making unsubstantiated claims. He explains that this method of treatment has been debunked decades ago, but keeps surfacing every so often. For each of the claims identified above, he explained why the claim cannot be true. This explanation includes arguments that the body regulates its own pH levels naturally (with the exception of a very tiny portion of society), that there has been no research done to prove the claims that Live Blood Analysis can detect medical conditions, much less treat it, and that the image purported to show liver stress (with clumped blood cells) is simply an example of a technician incorrectly collecting and presenting the sample, i.e. human error, as opposed to medical problems.
The complainant also submitted an article by Prof Edzard Ernst, a professor of complementary medicine at the Peninsula medical school at the universities of Exeter and Plymouth. The article gave a view against the use of Live Blood Analysis as a diagnostic tool due to its lack of reliability.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant to this complaint.
The respondent argued that the complaint does not make clear what the problem is, and it is presuming (based on the complainant’s final paragraph) that the complainant is unhappy about the impression that SevenPointFive uses Live Blood Analysis as a prediction or diagnostic tool. The website does not make the claim that Live Blood Analysis can diagnose or predict any disease, which negates this argument.
Similarly, the complainant has taken the statement “I beat lupus after suffering for 8 years” as suggestion that this was due to the respondent’s test. This is an error, because the statement referred to is a link to a testimonial on another page. The complainant incorrectly links two separate pages. The actual testimonial of the person who suffered from Lupus makes no reference to Live Blood Analysis in any way.
As this information has been available for close to 15 years, the fact that this is the first complaint would suggest that it ought to be dismissed. This approach would echo the sentiments of the Directorate’s rulings in the matters Lentheric / Jooste / 1730 (21 December 2004), and Cash Converters / P Terrett / 4708 (16 July 2002). In these matters, the Directorate dismissed complaints on offence because the advertising had reached a large audience, but elicited only one complaint.
Finally, it urged the Directorate to take cognisance of the fact that the complainant is a repeat complainant, who also operates a website, www.camcheck.co.za, which appears dedicated to naysaying anything other than pharmaceutical drugs. His concerns are clearly not those of an “ordinary consumer”, and it would not be a giant leap for a reasonable person to conclude he has some personal sponsored agenda.
The respondent noted that it is proud of the fact it receives only positive feedback from customers, and committed itself to responding to any future complaints from the public.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The first consideration that the Directorate needs to make relates to the complainant’s standing as a bona fide complainant. The respondent alleges the complainant as possibly engaging in a personal, or sponsored agenda.
In MTN / Mr I McLean (14 May 2003), the Advertising Standards Committee (the ASC) considered an appeal relating to a consumer complaint submitted by a Mr Ian McLean. At that point in time, Mr McLean had lodged large volumes of complaints against cell phone advertising in particular. The ASC made the following point:
“In regard to the Respondent’s submission that the complainant ‘appears to be oversensitive’, and is not motivated by a genuine concern in respect of the relevant advertisement but is pursuing a vendetta or crusade against the cellular telephone industry, the Committee is of the view that the complaint is a valid one which needs to be considered by the Committee. The Committee is not in a position to make a ruling as to whether the Complainant could be likened to a ‘vexatious litigator’. Mr McLean appears to be a consumer activist. Without evidence suggesting otherwise the Committee cannot exclude his complaint or complaints on that basis. In any event there is doubt that the Committee can entertain such a complaint against a Complainant”.
Likewise here, the respondent has not submitted a shred of evidence that shows that the complainant “has some personal sponsored agenda”. There is also nothing to show that the complainant stands to benefit commercially from any adverse ruling in this matter. In addition, Dr Steinman’s status as a consumer complainant was considered by the ASC in Alcat Test / HA Steinman / 12001 / 12307 (11 June 2009). In its ruling, the ASC noted as follows:
“… there is no information before us to suggest that he lodged the complaints in the course of his work on behalf of any of these entities or that he stood to be financially compensated for having lodged the complaints. Neither was it shown that as a result of him lodging the complaints, he stood to be rewarded with further consultancy work that he might not otherwise have obtained …
… While the [Dr Steinman], as a result of his qualifications, expertise and involvement in the field is set apart from the average consumer and may even have a strong personal interest in the matter, this does not necessarily make him a commercial competitor. There is a distinction between a ‘consumer advocate’ or an ‘expert consumer’ and a commercial competitor acting in pursuit of a commercial interest in lodging a complaint. While a consumer advocate may pursue a personal or public cause when lodging a complaint s/he does not necessarily act in pursuit of commercial gain. Competition for commercial gain on the other hand lies at the heart of the concept of commercial competitors. It is because competitors are by and large corporate entities who are pursuing commercial interests when lodging complaints that a fee attaches to competitor complaints. Individual consumers whether acting in their own (non-commercial) personal interest or in the public interest should not be discouraged from lodging complaints because they are required to pay a fee which they very often will not be able to afford. This would be contrary to the very purpose of the Code which is to provide an accessible mechanism to the public to protect them against unscrupulous advertising”.
In the absence of anything to the contrary (other than an unmotivated assumption on the part of the respondent), the Directorate cannot regard the complaint as invalid based only on the fact that Dr Steinman writes a blog where he criticises products and manufacturers that he believes are making unsubstantiated claims. He has not ex facie acted in a vexatious manner, nor has he been shown to stand to benefit from lodging this complaint. His complaint appears to comply with the procedures for lodging a consumer complaint in terms of the Code, and the Directorate therefore has to consider it accordingly.
Similarly, the respondent’s argument that the complaint ought to be dismissed based on the fact that this is the first complaint received in 15 years cannot succeed. The respondent is relying on rulings where the cause for concern was perceived offence. In such matters, public opinion, and the potential to cause sectoral, widespread, or serious offence are of importance, and the Directorate has to weigh these factors up in determining whether a single complaint received is indicative of such offence, or whether it rather represents a small, unreasonable minority.
This is not the case here, because the dispute relates solely to whether or not the respondent holds adequate substantiation for its efficacy claims. Put simply, the advertiser either has evidence for claims or it does not. The number of complaints in this context is irrelevant. It should also be noted that Clause 3.9 of Section I of the Code states that, “In determining whether an advertisement is in breach of the provisions of the Code, it is not the quantity of complaints that is determinative, but the validity of the complaints”.
Getting to the merits of the complaint, the Directorate notes that the complainant specifically identified the claims he is disputing, and provided reasons for objecting to them.
Clause 4.1 of Section II requires independent and unequivocal verification from a credible expert of any and all direct or implied efficacy claims. The respondent’s advertising creates a link between its Live Blood Analysis and the ability to detect certain deficiencies or problems in one’s body. It makes claims such as “First, you need to find out what is wrong. We use Live Blood Analysis to see exactly what is happening in your body right now” and “The Live Blood Analysis involves a pin prick of blood taken from your finger and placed on a microscope. We then have a look for imbalances, deficiencies and problems in your body”.
In addition to this, a host of testimonials appear, proclaiming various successes through this treatment. The Directorate therefore agrees with the complainant that, as a whole, the advertising promotes Live Blood Analysis as a diagnostic tool that assists in detecting various medical conditions. The claims identified by the complainant are all capable of objective verification as required by the Code. The respondent has, however, not submitted any such verification.
Given the absence of substantiation as required by the Code, the advertising and claims objected to by the complainant is in contravention of Clause 4.1 of Section II.
In light of the above:
The advertising and relevant claims must be withdrawn;
The process to withdraw the advertising and relevant claims must be actioned with immediate effect on receipt of this ruling;
The withdrawal of the advertising and relevant claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
The advertising and relevant claims may not be used again in its current format until the Directorate has received and accepted by way of a new Directorate ruling) adequate substantiation in accordance with the Code.
The complaint is upheld.
For the benefit of the respondent, the Directorate also draws attention to the provisions of Clause 10 of Section II of the Code, which deals specifically with testimonials and the relevant requirements.