Breach complaint against Solal dismissed

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Posted 5 July 2011

The Sugar Association (SASA) laid a breach complaint with the ASA against Solal arguing that Solal continued to make claims for their “Naturally Sweet” and “Stevia Sweet” products, which had claimed among other, "[F]or a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”.

SASA argued that a Google search found these documents on the Solal website. However Solal argued that the documents had been removed and that the links referenced were probably "cached" documents – which were no longer accessible. The ASA concurred, after also not being able to find documents at the URLs submitted, and dismissed the breach complaint.

Solal Technologies / SASA / 17484
Ruling of the : ASA Directorate
In the matter between:
Soth African Sugar Association Complainant(s)/Appellant(s)
 Solal Technologies (Pty) Ltd Respondent

30 Jun 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5628

BACKGROUND
In Solal Technologies / SASA / 17484 (5 May 2011) the Directorate ruled that the respondent’s advertising appearing on, inter alia, its website www.solaltech.com was unsubstantiated and by inference misleading.

The Directorate also held that the claims were disparaging and dishonest.

The advertisement promoted the respondent’s “Naturally Sweet” and “Stevia Sweet” products, and contained, inter alia, the following claims:

“For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”

“More recently, research conducted in 2008 and 2009 has shown that sugar excess can suppress your immune system and increase the risk of developing cancer”.

“Healthy alternative to sugar …”

The respondent was instructed to withdraw the claims and relevant advertising with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not to use them again in future until new substantiation has been submitted, evaluated and a new ruling has been made.

SUBSEQUENT TO THE RULING
On 25 May 2011 the complainant lodged a breach complaint against the respondent’s advertisements that were accessed via the following URL links:

• http://www.solaltech.com/adverts/aug/healthy%20fast%20foods.PDF
• http://www.solaltech.com/adverts/aug/Sugar&Sweeteners.PDF.

In essence, the complainant submitted that the offending claims still appears on the internet despite the ASA’s ruling made over two weeks ago that ordered the claims to be withdrawn.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

RESPONSE
Fluxmans attorneys, on behalf of the respondent, submitted, inter alia, that the complainant’s allegation are false as it has complied with and is not in breach of the ASA Directorate ruling dated 5 May 2011.

It submitted, inter alia, that it had removed the material complained of from its website immediately after receipt of the ruling in accordance with Clause 15.3 of the Procedural Guide. Since then visitors to its website have been unable to access or view the material complained of and are currently unable to do so.

The respondent submitted that the links listed by the complainant are cached links which are dormant links and not available to visitors of its website when accessing it in the normal, direct way. The cached links are not accessible through its website.

The respondent further argued, inter alia, that in order to access the material relevant to the breach allegation, the complainant must have conducted a Google search using very specific key words in order to link up with material that was not housed upon or accessible through its website. The cached links are certainly not “intended to promote” the sale of its goods or services and are not advertisement as contemplated by Clause 4.1 of Section I of the Code.

The respondent referred to previous ASA Directorate ruling in Biobust / H A Steinman / 3247 (30 March 2009) to support its argument that the respondent cannot be held responsible for search results emanating from Google search and not directly via the respondent’s website.

The respondent added that, inter alia, without obligation, instructed its website managers to disable the cached links to prevent complainants such as in this matter.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.

The complainant submitted that the offending claims still appear on the links mentioned above, whereas the respondent argued, inter alia, that the links listed by the complainant are cached links which are dormant links and not available to visitors of its website when accessing it in a normal way.

The respondent went further and submitted that the complainant conducted a Google search in order to link up with material that was not housed upon or accessible through its website.

A preliminary search into the respondent’s website, www.solaltech.com, did not appear to show the advertising originally ruled against. Similarly, searching the URL’s provided by the complainant proved unsuccessful, and in each instance delivered a message that the relevant page was not accessible. It appears from this that the respondent’s website managers appropriately disabled the cached links.

According to http://en.wikipedia.org the word cache means, “A component that transparently stores data so that future requests for that data can be served faster”.

In Biobust / H A Steinman / 3247 (30 March 2009) the Directorate held, inter alia, that:

“The Directorate is satisfied that the respondent has offered a reasonable explanation and should not be held responsible for search results emanating from Google search. In any event, the respondent has now made concerted effort to totally remove any access to its old pages”.

Similarly, in Homemark Slim Coffee / HA Steinman / 12988 (21 September 2009), the Directorate was faced with a similar situation, whereby the complained of advertising appeared as a result of a Google search rather than directly via the advertiser’s website. It was, inter alia, ruled that:

“From this it appears possible that the information that the complainant retrieved via Google might have been a result of residual information obtained during a previous ‘crawl’ [the system used by Google to retrieve and store information to display at a later stage]. This is reinforced by the fact that the breach was not ex facie noted on the respondent’s active website. The Directorate also did a Google search but were unable to find the offending advertisement at the time of ruling.

Given that the breach complaint relates to a Google search on the respondent’s product, it is the Directorate’s view that the respondent cannot be held liable for search results from Google search. The respondent has also confirmed that it has removed the product in its entirety from the Homemark website”.

In light of the above and given that the Directorate was unable to access the offending material directly from the respondent’s website, www.solaltech.com, the Directorate is not, at present and based on the available information, inclined to view this as a breach. The respondent has also confirmed that it has disabled the cached links to prevent complaints of this nature. Given that the respondent appears to have some measure of control over enabling or disabling cached links, it appears that the onus of complying would also extend to such links. The Directorate is not, however, expressly making a finding of this, as it is not presently required to do so.

In light of the above, the Directorate is satisfied that the respondent is not in breach of previous ruling and therefore not in breach of Clause 15 of the Procedural Guide insofar as its website is concerned.

The breach allegation is therefore dismissed.

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