Posted 27 October 2011
A consumer laid a complaint against packaging for Clicks’ Apple Cider with Green Tea. The packaging seen from the front promotes the product as “Weight Loss Support” and claims that it: “Helps to: • Promote energy levels to assist fat break down • Increase antioxidant levels”. In essence, the complainant submitted that the claims made on its packaging are misleading as there is no evidence in terms of the Code that the claims are true or possible. The complainant also searched the Natural Medicine Comprehensive Database (a source often used by practitioners of complementary medicine) but found nothing to show that the ingredients in the combination used have the claimed effects.
Clicks Apple Cider With Green Tea / HA Steinman / 17985
Ruling of the : ASA Directorate In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Clicks Retailers (Pty) Ltd Respondent
27 Oct 2011
Doctor Steinman lodged a consumer complaint against packaging for Clicks’ Apple Cider with Green Tea.
The packaging seen from the front promotes the product as “Weight Loss Support” and claims that it:
• Promote energy levels to assist fat break down • Increase antioxidant levels”.
In essence, the complainant submitted that the claims made on its packaging are misleading as there is no evidence in terms of the Code that the claims are true or possible. The complainant also searched the Natural Medicine Comprehensive Database (a source often used by practitioners of complementary medicine) but found nothing to show that the ingredients in the combination used have the claimed effects.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE The complainant identified Clause 4.1 of Section II (Substantiation) of the Code as relevant.
The respondent firstly undertook to remove the claim that this product helps to “Increase antioxidant levels” within deadlines prescribed in terms of the Code.
Together with More to Life Health (Pty) Ltd, the applicant for the product, it requested Ms Allison Vienings from MRA Regulatory Consultants, an independent regulatory consultancy, to compile an evaluation of its substantiation documents. It added that Ms Vienings is a credible expert in the field of complementary medicine.
Ms Vienings elaborated on the historic situation in terms of regulating complementary and alternative medicines as well as traditional African medicines. She referred to the respondent’s substantiation documents regarding the effectiveness of apple Cider, green Tea and chromium in helping to achieve the claims made on the packaging. She also emphasised that the weight reduction claims should be (and in this instance are) made along with the statement “Only effective when used in conjunction with a restricted or kilojoule controlled balanced diet”.
Copies of chapters from supporting literature, or research articles were also submitted. These relate to, or deal with Green Tea, Apple Cider Vinegar, Apricot, Chromium, Ginseng, and Gotu Kula.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking is accepted without considering the merits of the matter.
The respondent’s undertaking to remove the claim that the product helps to increase antioxidant levels appears to address the complainants’ concerns and there is therefore no need for the Directorate to consider the merits of the matter at this time.
The undertaking is accepted on condition that the claim that the respondent’s “Apple Cider with Green Tea … Helps to: Increase antioxidant levels” is withdrawn with immediate effect within the deadlines stipulated in the Code and not used again in future.
Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.
The packaging claims that the product offers “Weight Loss Support” and that it “Helps to … Promote energy levels to assist fat break down”.
To a hypothetical reasonable person this implies that using the product would likely result in weight loss, the breakdown of fat, and an increase in energy.
The respondent correctly noted that Ms Vienings has previously been accepted as an expert in the field of complementary medicines. There is nothing before the Directorate at present to cause it to deviate from its stance on this issue.
As such, the Directorate accepts MRA Regulatory Consultants as an independent and credible expert for the purposes of Clause 4.1 of Section II of the Code.
The only remaining question before the Directorate is whether or not the respondent adequately substantiated its claims in the manner required by Clause 4.1 of Section II of the Code?
The Directorate notes that the report from Ms Vienings relates to some of, or perhaps all of the ingredients contained in the product in most instances, the notion appears to be that these ingredients are known, through anecdotal evidence or more scientific trials, to deliver specific effects, such as speed up metabolism or act as a diuretic. It is trite that the Directorate cannot accept ingredient based substantiation as adequate for an entire product. This ties in with the fact that the claims objected to, as they appear on the image submitted by the complainant, imply that using this product will deliver the claimed results.
The above relates to the first concern the Directorate has insofar as the substantiation is concerned.
In addition, the Directorate is mindful of the approach followed in Bioslim Fat Attack / Dr HA Steinman / 4740 (20 June 2006), as cross-referenced with Bioslim / Dr S Goldstein / 1122 (10 March 2005) and Perc Slimming / Dr H Steinman / 1679 (14 January 2005); Perc Slimming / Dr H Steinman / 1679 (10 March 2005).
The significant principle established in these matters was that if weight loss claims are claimed to be true on the basis that the product is used “in conjunction with a kilojoule restricted eating plan and a moderate exercise programme” as stated by MRA, the claims must appear in conjunction with such a notice (also refer Bioslim Meal Replacement / J Gardener / 4531 (17 March 2006) and Bioslim Once a Day / Gardener / 589 (8 March 2005) for additional explanation of why the disclaimer needs to appear whenever efficacy claims of this nature are made).
From the examples of packaging submitted by the complainant, one can only see the front facia of the packaging, which only contains the product name, and the efficacy claims as well as the amount capsules per bottle. No reference is made to the fact that these claims are only true when the consumer also follows a healthy slimming programme, a kilojoule restricted diet and moderate exercise programme.
While the respondent alluded to the fact that such statements appear on the side of the packaging, the Directorate has not been provided with such examples. It should also be noted that, if these statements are removed from the efficacy claims, they would likely be regarded as an attempt to correct an impression already created by the main panel of the packaging (in line with the above examples), and would contradict the consumer expectation.
Given this, and in line with the principles established in the previous rulings referred to above, the Directorate cannot accept the substantiation at this time, because it does not appear to confirm unequivocally that the claims made are true for the product, and because the substantiation appears to be conditional, dependent on whether or not a kilojoule restricted diet and moderate exercise programme is followed.
In light of this, the claims as they appear on the packaging at issue are currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
Given the above:
The claims “Weight Loss Support” and “Helps to … Promote energy levels to assist fat break down” must be withdrawn;
The process to withdraw these claims must be actioned with immediate effect on receipt of this ruling;
The withdrawal of these claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
These claims may not be used again in their current format.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
The complaint is upheld in this regard.