Court action: Herbex vs ASA

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Posted 15 May 2016

As a consumer, do you care about whether or not the Advertising Standards Authority (ASA) has “jurisdiction” over the advertising of a product or a company selling certain products? Or do you want to be sure that the advertising is not false and misleading, so that you don’t waste your hard-earned money?

In court judgement dated 5 May, the Gauteng local division of the High Court ruled that the ASA had no jurisdiction over Herbex, because Herbex was not a member of the ASA. The overriding issue of interest to consumers is not about jurisdiction, but about whether or not the products work as claimed in the advertising. The issue of “effectiveness” was not included in the court challenge. However the EFFECT of the jurisdiction ruling, has left the issue of the effectiveness of the products (and their advertising) unaddressed. The previous rulings of the ASA, in which Herbex could not prove it worked, have now been nullified by the High Court. This surely is an unintended consequence of this High Court ruling, as it leaves the public at risk. The Constitutional rights of the company (to promote unproven products) have superseded the Constitutional rights of consumers to be not mislead about products they may buy and consume.

Below are posted a report on Herbex’s court action against the ASA, followed by Herbex’s media release –  a document that is as misleading and deceptive as many if not most Herbex products.

Herbex couches this as a victory and CEO Eddie Bisset states ” . .  after 21 years our clients can attest to the effectiveness and high quality of our products. We value the freedom to inform the public about Herbex products and we see this judgement as a positive step towards communicating the advantages of healthy living to the public.” (translation: to influence the public into buying products with no proof that they work, and pretending that buying them is part of “healthy living”! Clients attesting to effectiveness and high quality of products over 21 years is not equivalent to scientific evidence that the products contain what they claim to contain – quality; or that they are effective.)

This is in fact what happened: Complaints were laid by a consumer with the ASA arguing that there is NO evidence to support the claims being made for the Herbex products, Attack the Fat syrup, Eat Less drops and Appetite control tablets, and hence that the consumer was being misled. The ASA assessed the complaint and Herbex’s response and ruled in favour of the complainant, that is, against Herbex. Herbex appealed, and this finally reached the ASA’s Final Appeal Committee chaired by ex-Constitutional Court Judge, Kate O’Regan. Joining her were not the usual 3 members from industry, but 5.

Herbex’s lawyers, (joined by the Health Products Association’s (HPA’s) lawyers), argued that ample evidence supported the claims being made for these products, AND/OR, that the ASA had no jurisdiction over the claims that Herbex makes for these, or any of their products.

Read this again: if Herbex supplied sufficient evidence that their products worked, the ASA would have ruled in their favour.

In her ruling, Judge Kate O’Regan and her 5 co-assessors, noted that Herbex’s ‘experts’ who argued that the claims for these products were true, supplied scientific evidence, documents, or herbal monographs that CONTRADICTED their arguments. For example, Dr Nye claimed that fenugreek suppresses appetite when in fact, documents he supplied claim that it is used for stimulating appetite. The claim that Garcinia in extremely low doses results in effects on weight was contradicted by evidence that it does not even do so in high dosages. (In Herbex Appetite Control Tablets Garcinia cambogia is used in this ingredient at 10 mg per dose versus 1,000 mg to 5,000 mg/day used in studies)

Accordingly had the NMCD corroborated Dr Sandell’s evidence, the evidence tendered by the Appellant might well have been considered to constitute adequate substantiation for the claims made in respect of the three products. Unfortunately, however, as Dr Steinman pointed out, in many cases the NMCD does not support the claims made for the effectiveness of the ingredients of the three products asserted by Dr Sandell. So, for example, in relation to Herbex Appetite Control tablets which contain spirulina (arthrospira plantensis), garcinia cambogia (citrin), yerba maté, camellia sinensis (green tea) and ginger, Dr Sandell stated that spirulina “reduces appetite and improves fat metabolism”. To support this he attaches the relevant pages of the NMCD which state, under a heading “effectiveness”, that “preliminary research shows that taking spirulina blue-green algae does not seem to help reduce weight”.

From the ruling.

Read this twice: There is not a single study or credible evidence to support the claims made for a single one of these products. The claims are based on the OPINION of Herbex’s ‘experts’. These facts are elaborated upon here.

Here is the rub: Herbex’s proof that their products work was found to be absolutely dismal. In essence, the ASA ruling prevented Herbex from continuing to make these false claims in advertising in the media (who are members of the ASA) based primarily on the fact that Herbex could not supply adequate evidence that the claims are true. In other words, the ASA’s ruling was to prevent you, the consumer, from being fed claims that have no proof of being true.

Herbex could have taken the ASA to court arguing that they were wrong in the assessment of the evidence – but would have lost. Hence in order to continue duping you, the consumer, the easiest route was to take the ASA to court arguing that they have no jurisdiction over Herbex, a ‘non-member’ of the ASA, with an argument that ONLY the MCC or NCC can act against Herbex.

But here is sleigh of hand: a.) at the time of the ruling, Herbex was a member of the HPA – the HPA are members of the ASA; b.) neither the MCC or NCC have to date acted against snake oil salesmen and/or people selling unsubstantiated products, therefore the chances of the MCC acting against Herbex is a long way off.

Section 18C. Marketing of medicines of the Medicines Act states: “The Minister shall, after consultation with the pharmaceutical industry and other stakeholders, make regulations relating to the marketing of medicines, and such regulations shall also provide for an enforceable Code of Practice”. However, no regulations have been issued by the Minister, and so there is no legally enforceable Code of Practice. In other words, open-season for anyone to make ANY claim you want!

Saul Shoot of Fluxmans, the lawyers acting for Herbex, makes the pejorative term, presumably deliberately, that the ASA is a “private club”. The ASA should have been described as a “responsible non-governmental, non-profit association, concerned about ensuring advertising standards”.  Shoot said: “The authority has finally been exposed for what it is an unqualified, ignorant and cavalier private club which has no jurisdiction over non-members.” Juxtapose this with the fact that Judge O’Regan and her 5 co-assessors, found the evidence supplied by Herbex to support the claims for their products to be inadequate, poor, and therefore the claims improbable.

The court ruling did not address the merits of the products that there is no scientific evidence that the products are of any value, only jurisdiction.

So who is Saul Shoot? Shoot is the lawyer representing Herbex, USN, Antagolin, Homemark, Solal and others, ALL having had ASA rulings against them for not being able to support product claims with suitable evidence.

High Court Herbex vs ASA CASE NO: 14/45774 – 12 Mb pdf (opens in new window)

High Court Herbex vs ASA CASE NO: 14/45774 – 2 Mb pdf (opens in new window)

ASA loses weight debate

Katharine Child | 12 May, 2016 06:51

Times Live http://www.timeslive.co.za/thetimes/2016/05/12/ASA-loses-weight-debate

If you don’t believe the claims Herbex makes about weight loss, don’t bother complaining to the Advertising Standards Authority.

A Johannesburg High Court judgment has interdicted the ASA from ruling on Herbex adverts because it does not belong to the organisation and is not compelled to belong to it as membership is voluntary.

In the past the ASA has repeatedly found that Herbex products make weight loss claims without scientific evidence, essentially duping consumers with unsubstantiated promises.

Yesterday Herbex said it was “thrilled” by the judgment.

But others say the judgment leaves consumers without protection from advertisers who make promises without scientific evidence to back up their claims.

Stellenbosch science communication professor George Claassen said it opened the door to quackery as now any salesman could make false promises without sanction.

Former Constitutional Court judge Kate O’Reagan found in an ASA ruling in 2014 that Herbex had no evidence to show its “Attack the Fat” syrup, “Eat Less” drops and appetite control tablets worked.

Herbex asked the High Court to interdict the ASA from ruling on its adverts, as it was not a member of the authority and did not subscribe to its marketing code. It said rulings damaged its reputation.

The high court ruled that the authority could no longer act on complaints about Herbex adverts because it did not have legal power over non-members.

The authority was ordered to repay about R170,000 in appeal fees. Freddy Makgato, head of regulatory affairs at the authority, said it was considering appealing.

Herbex lawyer Saul Shoot said: “The authority has finally been exposed for what it is . an unqualified, ignorant and cavalier private club which has no jurisdiction over non-members.”

Groupon and Solal Vitamins have cases pending against the ASA, arguing they need not abide by its rulings.

 

Herbex’s Media Release

Victory for Herbex as court declares ASA’s conduct unconstitutional and ASA rulings void

The High Court has in a recent judgment finally put an end to the ASA’s unlawful assumption of jurisdiction and harassment of Herbex by infringing its constitutional rights of free trade, expression and (dis)association (from the ASA) .  

In the High Court judgment, Judge DTvR du Plessis found in favour of Herbex and ordered that the ASA has no authority over entities that are not members of the ASA. The judgment also provides that it was unlawful for the ASA to extract so-called “appeal fees” from Herbex as a non-member and ordered the ASA to repay Herbex these monies extracted under false pretenses with interest (amounting to approximately R170 000). The judgment made it clear that no advertiser (which is not a member of the ASA) can be forced to participate in the ASA’s processes or even respond to its letters.
The ASA’s rulings against Herbex have been declared by the Court to be void and the ASA has been interdicted from issuing any further rulings or adjudicating any further complaints against Herbex. The Court Order also instructs the ASA to remove all rulings against Herbex from its website and other official publications.

The ASA has also been ordered by the Court to amend its standard letters to make it clear to all non-members that it has no jurisdiction over non-members and that they are not obliged to participate in ASA processes.  The High Court judgment records that the ASA had “misrepresented” (falsely held out) to the public that it was mandated by the Medicines Control Council (MCC) and authorized to regulate medicine advertising (including complementary medicine advertising) in terms of Section 18C of the Medicines Act when the ASA knew this was untrue.

The attorney representing Herbex, Saul Shoot of Fluxmans Inc., was delighted with the outcome given the high-handed manner in which the ASA conducted the litigation and pleased that the Court rejected the ASA’s attempted justification of its unlawful conduct as “untenable.  It is accordingly unsurprising that “The ASA’s application for accreditation in terms of the Consumer Protection Act was unsuccessful.”  “The ASA has finally been exposed for what it is namely an unqualified, ignorant and cavalier private club who has no jurisdiction or statutory power over non-members and which has unashamedly ridden rough shod over non-members constitutional rights of expression, trade and (dis)association for years.” “Its ignorance in medical matters has manifested in absurd ASA rulings censoring or banning true advertising claims which censorship is harmful to the public interest.”  It’s now time for the ASA to stop scamming non-members says Mr Shoot.

Herbex CEO Eddie Bisset was also very positive about the news. “Our top priority has always been the health and safety of consumers,” said Bisset. “Herbex is a trusted brand in South Africa and after 21 years our clients can attest to the effectiveness and high quality of our products. We value the freedom to inform the public about Herbex products and we see this judgment as a positive step towards communicating the advantages of healthy living to the public.”

Herbex is thrilled that the violation of its constitutional rights by the ASA has been brought to an end, grateful to Mr Shoot and Fluxmans Inc for their professional approach to the matter and hopeful that the ASA will not violate the constitutional rights of other non-members.  

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