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Health Matters-Immune Restore – ASA ruling

Posted 07 May 2012

A consumer lodged a consumer complaint against the respondent’s print advertisement appearing in the Mail and Guardian during December 2011. The advertisement, inter alia, promotes the respondent’s “Immune Restore Optimal Health Supplements” under the heading “ARE YOU HIV+?” It punts the product as “… a combination of trace elements essential for normal immune system” and explains that it “… replaces the vital aminal acids & vitamins depleted by HIV”.

In essence, the complainant submitted that the claims highlighted above (save for “CAN BE TAKEN WITH ARVS”, which the complainant did not specify) are unsubstantiated. In addition, the references to HIV, viral load, CD4 counts and ARVs are clearly a reference to Aids, which contravenes the provisions of Appendix F.

  Health Matters-Immune Restore / K Charleston / 19467
  Ruling of the : ASA Directorate
  In the matter between:
  Kevin Charleston Complainant(s)/Appellant(s)
  Streamline Trading t/a Health Matters Respondent

07 May 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6072 

Mr Charleston lodged a consumer complaint against the respondent’s print advertisement appearing in the Mail and Guardian during December 2011.

The advertisement, inter alia, promotes the respondent’s “Immune Restore Optimal Health Supplements” under the heading “ARE YOU HIV+?” It punts the product as “… a combination of trace elements essential for normal immune system” and explains that it “… replaces the vital aminal acids & vitamins depleted by HIV”. It also features four ticked boxes with the following wording:

• “LOWERS VIRAL LOAD”
• “REPAIRS IMMUNE SYSTEM”
• “IMPROVES CD4 COUNT”
• “CAN BE TAKEN WITH ARVS”.

COMPLAINT
In essence, the complainant submitted that the claims highlighted above (save for “CAN BE TAKEN WITH ARVS”, which the complainant did not specify) are unsubstantiated. In addition, the references to HIV, viral load, CD4 counts and ARVs are clearly a reference to Aids, which contravenes the provisions of Appendix F.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into consideration:

• Section II, Clause 4.1 – Substantiation

• Appendix F – References to diseases

RESPONSE
The respondent submitted that the advertising was directly copied from information supplied by its overseas supplier. However, as the product was not received well and proved not to be a viable business venture, it has not embarked on any further advertising.

When asked by the Directorate whether this means that it unequivocally undertakes to refrain from using the advertisement and claims objected to, the respondent did not reply.

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

In light of the fact that the respondent did not confirm that it would refrain from using the advertisement and claims objected to in future, the Directorate had no option but to proceed on the assumption that the respondent would not. As such, the merits of the matter had to be considered.

Clause 4.1 of Section II requires verification for any direct or implied claims that are capable of objective verification. It further specifies that this verification should either emanate from, or be evaluated by an independent and credible expert.

The Directorate is satisfied that the claims objected to by the complainant are capable of objective verification in terms of Clause 4.1 of Section II. The respondent, however, did not submit any.

Accordingly, the advertising and claims objected to is unsubstantiated and in breach of Clause 4.1 of Section II of the Code.

Furthermore, Appendix F lists a number of diseases to which reference cannot be made unless the product is registered with the Medicines Control Council (the MCC) and the claims approved by the MCC. One such condition listed in Clause 2 of Appendix F is AIDS.

This advertisement clearly targets people who have HIV and creates an impression that the product would, inter alia, lower one’s viral load and improve CD4 levels. It therefore falls within the parameters of Appendix F.

While the Directorate notes that Clause 2 of Appendix F provides for reference to AIDS in instances where the advertising is educational or informational, and/or where the product is not registrable with the MCC, the respondent has not made out a case that either of these conditions apply, and there is nothing in the advertisement to suggest that this is the case.

As such, and based on the information at hand, the advertising appears to be in contravention of the provisions of Appendix F.

In light of the above:

The respondent is instructed to withdraw its advertising and the claims objected to,

The respondent is instructed to action the withdrawal of the advertising and relevant claims with immediate effect upon receipt of this ruling,

The respondent is instructed to ensure that the advertising and claims objected to are withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and

The respondent is instructed to refrain from using this advertisement and the claims objected to again in future.

The complaint is upheld, and the respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively requires offending advertising to be removed from any media in which it appears irrespective of whether or not the complainant specifically referred to such media.

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