Dr Boxalls – ASA ruling

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Posted 01 November 2011

A consumer complaint against the respondent's advertising in the form of a flyer distributed which promotes the respondent's "SUTHERLANDIA FRUTESCENS WITH OLIVE LEAF" as ". one of nature's strongest immune boosters in this age of viral epidemics. So effective, it is used as a component to boost immunity in patients with AIDS". It adds that Sutherlandia Frutesence has ". been used traditionally for:", inter alia, cancer and diabetes. In addition, it promoted the respondent's "HOODIA GORDONii" under the auspices that it ". has been used traditionally to suppress appetite, boost energy, control glucose intake, combat obesity, and combat bingeing".

Dr Boxalls / TAC / 17965

 Ruling of the : ASA Directorate

In the matter between:

The Treatment Action Campaign (TAC)  Complainant(s)/Appellant(s)

Dr Boxalls cc       Respondent 

31 Oct 2011

http://www.asasa.org.za/ResultDetail.aspx? Ruling=5815 

 Mr Marcus Low, on behalf of the TAC, lodged a consumer complaint against the respondent's advertising in the form of a flyer distributed at Wembley Square in Cape Town during May 2011. The point was also made that the claims at issue also appear on the respondent's website www.drboxalls .com. 

The flyer promotes the respondent's "SUTHERLANDIA FRUTESCENS WITH OLIVE LEAF" as ". one of nature's strongest immune boosters in this age of viral epidemics. So effective, it is used as a component to boost immunity in patients with AIDS". It adds that Sutherlandia Frutesence has ". been used traditionally for:", inter alia, cancer and diabetes. 

In addition, it promotes the respondent's "HOODIA GORDONii" under the auspices that it ". has been used traditionally to:" 

  • "Suppress appetite"
  • "Boost energy"
  • "Control glucose intake"
  • "Combat obesity"
  • "Combat bingeing" 

COMPLAINT

The complainant essentially raised 3 issues: 

The references to AIDS, cancer and diabetes in relation to the respondent's Sutherlandia frutesence are in contravention of Appendix F of the Code, as the respondent's product is not registered with the MCC for the treatment of these diseases. 

The claim that the respondent's product combats obesity is in breach of Clause 2.1.6 of Appendix E of the Code, which prohibits references to obesity in advertising for slimming. Similarly, the reference to suppressing appetite is in breach of Clause 2.5.1 of Appendix E, which only permits such claims in the presence of adequate substantiation, which the respondent does not hold. In addition, the advertising for this specific product is in breach of Clause 2.3.1 of Appendix E, which requires clear and prominent mention of the fact that the product is only effective when taken in conjunction with, or as part of a kilojoule-controlled diet. No reference to this is made on the advertisement. 

The trade name "Dr Boxalls" implies that Mr Richard Boxall is a medical doctor, which is not the case. As such, the name "Dr Boxall" is misleading and dishonest in a manner that contravenes clauses 4.2.1 and 2 of Section II respectively. The complainant added that the reference to the "South African Traditional Doctors Union" is not sufficient as this still does not explain that he is not a medical doctor, and is not prominent enough to override the impression created by the prominent trademark. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

The complainant identified the following clauses of the Code as relevant: 

  • Section II, Clause 2 – Honesty 
  • Section II, Clause 4.2.1 – Misleading claims 
  • Appendix E, Clause 2.1.6 – Mass loss (Obesity) 
  • Appendix E, Clause 2.3.1 – Aids to dieting: General 
  • Appendix E, Clause 2.5.1 – Appetite suppressants 
  • Appendix F – References to diseases 

RESPONSE

In essence, the respondent submitted that the complainant has not read and interpreted the advertisement correctly, as all references to efficacy and/or diseases are made in the context of "traditional use". 

Insofar the identification as "Dr" is concerned, the respondent pointed out that he is recognised as a a "Trained Traditional Medical Practitioner". The advertisement also clearly refers to this by claiming membership of the "South African Traditional Doctors Union" and providing a practice number. 

Lastly, in a response submitted subsequent to the above, the respondent noted that it would remove the word "Obesity" from all its future advertising. 

ASA DIRECTORATE RULING

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

The starting point of any consideration is what the likely take-out of an average, hypothetical reasonable person would be when confronted with the advertisement at issue. 

When considering the advertisement objectively, the Directorate is satisfied that the overall impression created, is that the respondent is promoting its products on the premise that these products would deliver the results claimed. The fact that the respondent states that the relevant products have "been used traditionally" does not detract from this. In fact, it reinforces the message that the product is capable of delivering these claims, or causing some effect in relation to the diseases or medical conditions listed. The overall take-out would, at best, be that "traditionally people have used this product for [whatever the conditions are]. Now, the respondent is providing that same product / efficacy to you in the form of its own product, which will deliver the same results". 

It is disingenuous to expect people to attach a different meaning when these products are promoted under clear and prominent headings such as "Weight loss – Obesity Kilojoule Intake Control"; "Anti-depressant Stress – Anxiety

– Mood" and "Immunity – Colds & Flu Cancer – Diabetes – Virusses". Along with these headings, the respondent claims the "traditional" use and punts its product for the very same uses. 

As such, the Directorate is satisfied that the complainant attached a reasonable interpretation and that the Clauses identified are applicable. 

Complaint in relation to Appendix F

Appendix F states that "Advertisements should not make or offer products, treatments or advice for any of the following illnesses or conditions unless recommendations accord with a full product registration by the Medicines Control Council (MCC)". Some of the conditions or diseases listed are "Cancer", "Diabetes" and "AIDS". 

From the wording of Appendix F it is clear that advertising may make NO reference to these diseases unless the advertiser's product has been registered with the MCC. The information at hand does not suggest that the respondent's products are registered. 

As such, the references to "Cancer", "Diabetes" and "AIDS" as appearing in the respondent's advertisement are in contravention of Appendix F. 

The respondent is therefore required to: 

Withdraw the references to Cancer, Diabetes and AIDS 

Action the withdrawal of these claims with immediate effect, 

Ensure that the withdrawal of these claims is completed within the deadlines stipulated in the Code, and 

Refrain from using these claims again in future. 

The respondent's attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires it to withdraw the advertising and claims from any media it may appear in, irrespective of whether or not the complainant identified such media. 

This aspect of the complaint is upheld. 

Complaint in relation to Appendix E

Appendix E deals specifically with advertising for "Slimming", and contains a host of requirements and provisions on the issue. 

Clause 2.1.6 of Appendix E states "Obesity is a condition requiring medical attention and treatment. No claims referring to obesity are admissible in advertisements directed at the general public. (See Appendix F.)". 

The respondent provided an unequivocal undertaking to refrain from using the word "obesity" in any future advertising. 

This undertaking appears to address the concerns raised in relation to the reference to "Obesity" and is therefore accepted as an adequate resolution to this specific concern. 

The Directorate accepts this undertaking on condition that the respondent removes any and all references to "Obesity" from all advertising within the deadlines stipulated in Clause 15.3 of the Procedural Guide. The respondent's attention is again drawn to the provisions of Clause 15.5 of the Procedural Guide. 

Clause 2.3.1 of Appendix E states "Diet aids, such as foods, food substitutes or appetite depressants, may not be advertised except in terms which make clear they can only be effective when taken in conjunction with or as part of a kilojoule controlled diet. Due prominence should be given therefore, in all advertisements to the part played by the diet". 

Clause 2.5.1 reads "Advertisements for appetite depressants should make clear how they work and will only be regarded as acceptable when adequate evidence has been provided by advertisers that the product is safe and effective at the level of consumption suggested". 

From these clauses it is clear that advertising for, inter alia, appetite suppressants (such as the respondent's "HOODIA GORDONii" product MUST contain a clear and prominent statement that the product is ONLY effective when used in conjunction with, or as part of a kilojoule-restricted diet. In addition, the Code requires "adequate evidence" that the product is safe and effective at the dosage recommended". 

The respondent's advertisement makes absolutely no mention of the fact that its product is only effective when used in conjunction with or as part of a kilojoule-restricted diet. Similarly, it has put no evidence before the Directorate of the claimed efficacy. While it submitted a letter from one "Chief Dr Richard Kutela", a "Specialist in Natural Medicine" and the president of the South African Traditional Doctors Union, this does not amount to "adequate evidence", but at best, the opinion, or "say so" of a person who arguably has a vested interest in the claims being accepted. 

By virtue of the above, the respondent's advertising is in contravention of Clauses 2.3.1 and 2.5.1 of Appendix E of the Code. 

The respondent is therefore required to: 

Withdraw the advertisement and relevant claims, 

Action the withdrawal of the advertisement and relevant claims with immediate effect, 

Ensure that the withdrawal of the advertisement and relevant claims is completed within the deadlines stipulated in the Code, and 

Refrain from using the advertisement and relevant claims in future again. 

The respondent's attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires it to withdraw the advertising and claims from any media it may appear in, irrespective of whether or not the complainant identified such media. 

Similarly, and for the guidance of the respondent, the Directorate draws attention to the provisions of Clause 4.1 of Section II of the Code, which deals with "Substantiation" and outlines what the Directorate requires in relation to evidence for efficacy claims. 

This aspect of the complaint is upheld. 

Reference to "Dr"

The complainant essentially argued that the claim of being a "Dr" is dishonest and misleading, because it implies that the respondent is a medical doctor, which is not the case. 

The respondent pointed out that it is a registered and qualified traditional doctor, and has every right to make this claim. A letter from Chief Dr Richard Kutela was also submitted to attest to this fact. 

Looking at the advertisement as a whole and in the context of the products being promoted, the Directorate is not convinced that any reasonable person would instinctively assume that the respondent is a medical doctor. This is partly due to the fact that the name contains the "TM" superscripted, implying that it is a trademarked name, relating more to the brand as a whole and not necessarily a literal title. In addition, the Directorate cannot overlook the fact that the respondent discloses his membership to the "South African Traditional Doctors Union" on its advertisement. The advertisement also does not claim to offer medical treatments as such.

Unlike the advertisements often ruled against where charlatan healers claim to offer medical advice and treatments, this advertisement promotes a product under the brand name Dr Boxell's. 

As such, the Directorate does not agree that a hypothetical reasonable person would be misled into believing that the respondent is a medical doctor. The reference to "Dr" in the context in which it appears in this advertisement is therefore not in contravention of Clauses 2 and 4.2.1 of Section II of the Code. 

This aspect of the complaint is dismissed.

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3 Responses to Dr Boxalls – ASA ruling

  1. Roy 2 November, 2011 at 9:01 am #

    The ASA ruling includes these statements provided by the respondent (Dr Boxalls cc): 
     
    Insofar the identification as "Dr" is concerned, the respondent pointed out that he is recognised as a a "Trained Traditional Medical Practitioner". The advertisement also clearly refers to this by claiming membership of the "South African Traditional Doctors Union" and providing a practice number. (emphasis added)
     
    "The respondent pointed out that it is a registered and qualified traditional doctor, and has every right to make this claim. A letter from Chief Dr Richard Kutela was also submitted to attest to this fact." (emphasis added)
     
    The "South African Traditional Doctors Union" actually does not have the regulatory or statutory authority to "register" traditional doctors.
     
    Only the Board of Healthcare Funders (BHF) has the authority to provide legitimate practice numbers. Neither "Dr" Boxall or "Chief Dr" Kutela have practice numbers supplied by the BHF according to its website (http://www.bhfglobal.com).
     
    It is unfortunate that the ASA did not pick up these discrepancies.

  2. Untrue 14 November, 2011 at 10:40 am #

    Roy, this is untrue. Simply pick up the phone and call the Board of Healthcare Funders (BHF). They DO NOT offer or regulate practice numbers for traditional medical practitioners. The Board of Healthcare Funders (BHF) register practitioners in respect of medical aid repayment. Do you not recognize the fraternity of traditional medicine, The WHO does. 

  3. Roy 14 November, 2011 at 7:34 pm #

    @Untrue
     
    I am wondering what your interest in this is. Are you a "trained traditional medical practitioner"? Do you use the title "Dr"? Do you have a legitimate practice number that is not issued by the BHF?
     
    What I mean by a "legitimate practice number" is one which is recognised for purposes of medical aid repayment. You have confirmed my viewpoint that the ASA missed a major misleading component of the advertisement, which was that a practice number was quoted, and that practice number may NOT have been a "legitimate practice number".
     
    Are you saying that the "South African Traditional Doctors Union" has the authority to provide practice numbers to Traditional Medical Practitioners? I have not seen any laws passed, or any Government Gazette announcing this.
     
    I am waiting with interest for the further implementation of the Traditional Health Practitioners Act and the appointment of the Traditional Health Practitioners Council. It is only then that proper regulation of Traditional Health Practitioners will begin to take place.
     
    Remember, we are not subject to the WHO – which is only an "organisation" – it is not a regulatory authority nor is it a government.

    Also, I think you are missing the point that the products being advertised for a variety of complaints were making misleading and, in my view, irresponsible claims – which I don’t think a genuine traditional medical practitioner would do if her/his first concern was for patients rather than to sell products.

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