Posted 09 April 2003
We have argued that most if not all Herbex products cannot substantiate the claims being made for them. Indeed, we have argued that in most cases, the evidence argues AGAINST the claims being made for the products. In fact, is there evidence that some or most Herbex products are simply “scam” products?
We argue that testimonials promoting these products are in fact evidence simply of individuals sticking to diets and not as a result of the Herbex product per se; and attributing the benefit of the diet to the Herbex product. There is not a single study (proof) demonstrating that the great majority of Herbex products have any efficacy at all.
Complaints against Herbex products have been laid with the ASA previously. Herbex convinced the ASA that Dr RC Sandell was a “credible expert”. Based on Dr Sandell’s support that the products work (no more than a “belief”), this must be so for he is an expert. We have argued that Dr RC Sandell is simply a “hire gun” and that he was either lying or very inexperienced. The ASA had previously concluded that Dr Sandell was an “expert” in homeopathy based simply on his CV, and therefore accepted his substantiation of previous Herbex products explaining why many Herbex products, without any proof of efficacy at all, is still on the market.
This ASA ruling is AGAINST Herbex’s claims for this product, i.e., insufficient evidence that it has any support for the claims being made. More importantly, the Allied Health Professions Council of South Africa (AHPCSA) weighed in stating: “The AHPCSA is further of the opinion that since Dr Sandell is not, nor ever was, registered as a phytotherapist (herbal practitioner), he is not qualified to comment on herbal preparations since these would also not have formed part of his legal scope of practice …”
1. The ASA ruling
2. Dr RC Sandell’s CV
|Herbex Appetite Control Tablets / HA Steinman / 20993|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Herbex (Pty) Ltd Respondent
02 Apr 2013
Dr Steinman lodged a consumer complaint against the respondent’s advertising appearing on its website www.herbexhealth.com. The product at issue is called “appetite control tablets”, and the advertising explains that the tablets are “… formulated to manage the appetite safely and naturally”.
The ingredients are listed as “Spirulina”, “Citrin”, “Yerba mate”, “Green tea” and “Ginger”. The benefits of each of these ingredients are listed in the advertisement. The image of the packaging on the website contains the wording “WEIGHT-LOSS FORMULA … 5 essential herbs … manage appetite reduces hunger pangs and cravings”.
The complainant submitted that he “… cannot find any evidence in well-known scientific databases that confirms that this mix of ingredient, or robust evidence for the individual ingredients, that supports the claims and in particular for the dosages used for these individual ingredients in this formulation”. He added that even if the product did contain all the ingredients listed at the dosage listed, it would still not be able to fulfil the claims made. As a result, the efficacy claims as well as the name “Appetite Control” are unsubstantiated and misleading.
The complainant added that the respondent’s usual expert, Dr Sandell, could no longer be regarded as credible. He explained that originally, Dr Sandell was accepted on the strength of his registration with the Allied Health Professions Council as a homeopath. However, it has recently come to light that Dr Sandell (who is no longer registered with the Council) never passed any exams as required, but was merely registered based on a “Letter of Good Standing” from 1992 – 1993, supported by Dr David Nye and Dr Peter Smith. In other words, he has no qualifications to support his position.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were considered relevant:
• Section II, Clause 4. 1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
The respondent firstly argued that the complainant has not given any new arguments or evidence to warrant a deviation in the Directorate’s usual approach of accepting Dr Sandell. It referred to a Directorate decision in the matter Herbex Website Erroneous / HA Steinman / 10773 (15 April 2008), and submitted that the latest attack does not offer anything new.
It denied the complainant’s arguments that there is no evidence, and submitted a letter from Dr Sandell, confirming the synergistic action between the ingredients. It again emphasised the fact that Dr Sandell has been accepted as an expert on numerous occasions in the past. Given the verification it is also not reasonable to argue that the product name is unsubstantiated.
The letter from Dr Sandell confirms the individual efficacy claims made for the ingredient listed in the advertisement. He adds that:
“Due to the combination formulation of Herbex Appetite Control Tablets there is a synergistic action between the ingredients which:
The different ingredients work in a synergistic manner to curb appetite (Limit appetite), reduce cravings and stimulate weight loss
Enables them to be used in lower doses than if they had been prescribed individually.
As a result there is a therapeutic effect and potentially less side effects …”
The respondent also submitted information obtained from the Natural Medicines Comprehensive Database relating to “blue-green algae”, “Garcinia”; “Mate”; “black tea”; and “Ginger”.
In an unsolicited email from Dr Louis Mullinder, the Registrar of the Allied Health Professions Council of South Africa (the AHPCSA) the Directorate was advised that:
“… Dr Sandell was registered as an acupuncturist only (emphasis that of the Registrar) in the Register: Chines Medicine and Acupuncture and as such would not have been permitted to administer, prescribe or dispense traditional Chinese herbal medications …
The AHPCSA is further of the opinion that since Dr Sandell is not, nor ever was, registered as a phytotherapist (herbal practitioner), he is not qualified to comment on herbal preparations since these would also not have formed part of his legal scope of practice …”
The Directorate afforded the respondent an opportunity to comment on this. It again pointed out that Dr Sandell has been accepted on numerous occasions and argued that he was never identified or presented as a phytotherapist. It also attached a copy of Dr Sandell’s CV.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
It can be accepted that the Directorate makes a prima facie determination on whether or not an expert relied on by any advertiser should be regarded as independent, as credible, and as an expert in the particular field to which the claims relate. This is, after all, what Clause 4.1 of Section II requires.
In doing so, the expert relies on the information provided by the parties, and more often than not, copies of CVs or resumes or company profiles (in instances where companies are relied on as opposed to individuals).
When Dr Sandell was first presented to the Directorate as an expert, the Directorate ruled as follows (refer the ruling Herbex Nerve Tonic / MB Truter / 940 (28 July 2005) for full details):
“The Directorate has perused Dr Sandler’s CV [his name was incorrectly reflected] and is satisfied that he is a credible and independent expert in the field to which the claims relate”.
No further reasoning for this was provided, and it would appear that this decision is based on the information before the Directorate at that stage (a CV indicating that Dr Sandell is registered as a Homeopath and Chinese Medicine and Acupuncture practitioner with the Allied Health Professions Council). It would also appear that no consideration was given to whether or not Dr Sandell was a “phytotherapist” (herbal practitioner), which would suggest that, at the time, the Directorate was not aware that this distinction could possibly be material. A search for the term “phytotherapist” on the ASA’s electronic archives on its website also does not return any results, which would suggest it is not something that has received substantial consideration (if at all) by the Directorate.
As recently as 2008 the Directorate still maintained its acceptance of Dr Sandell based on the fact that the initial acceptance in 2005 has never been overruled. In Herbex Website Erroneous / HA Steinman / 10733 (15 April 2008), the Directorate specifically noted that:
“Dr Sandell has repeatedly been accepted by the ASA as an independent and credible expert for the purposes of Clause 4.1 of Section II of the Code. There is no new evidence before the Directorate to warrant a departure from this acceptance. Accordingly, Dr Sandell is accepted as an independent and credible expert for the purpose of this ruling”.
However, the email received from the AHPCSA clearly constitutes “… new evidence before the Directorate to warrant a departure from this acceptance”. It is pertinently stated that “The AHPCSA is further of the opinion that since Dr Sandell is not, nor ever was, registered as a phytotherapist (herbal practitioner), he is not qualified to comment on herbal preparations since these would also not have formed part of his legal scope of practice”.
The respondent refers to its own products as containing “herbal ingredients”, as does Dr Sandell, which would suggest that they fall within the realm of “phytotherapy”. This is problematic in the sense that the Allied Health Professions Council, a body defined on www.ahpcsa.co.za as a “… statutory health body established in terms of the Allied Health Professions Act, 63 of 1982 (the Act) in order to control all allied health professions, which includes Ayurveda, Chinese Medicine and Acupuncture, Chiropractic, Homeopathy, Naturopathy, Osteopathy, Phytotherapy, Therapeutic Aromatherapy, Therapeutic Massage Therapy, Therapeutic Reflexology and Unani-Tibb”, makes it clear that Dr Sandell is not qualified to comment on herbal preparations.
The Directorate cannot ignore this, and is satisfied that this “new evidence” in the form of the AHPCSA letter warrants a departure from its usual approach of accepting Dr Sandell as an independent and credible expert in the field to which the claims relate.
For all the above reasons, the Directorate finds that Dr Sandell does not meet the criteria set out in the Code for an independent and credible expert in the field to which the claims relate. He is therefore not accepted as a suitable expert in terms of Clause 4.1 of Section II of the Code.
It therefore stands to reason that the advertising objected to is not currently substantiated within the meaning of Clause 4.1 of Section II of the Code.
Accordingly, the respondent is instructed to:
Withdraw the advertisement complained of,
Action the withdrawal of the relevant advertising immediately upon receipt of this ruling,
Ensure that the advertising is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide,
Refrain from using this advertisement again in future unless new substantiation has been submitted and accepted by the Directorate in the form of a new ruling.
The complaint is upheld.
DR R.C.I SANDELL – CURRICULUM VITAE
University of Cape Town
- Qualified B.Sc. 1951
- Class Representative, 2nd year Medical Class, 1952
- Treasurer, Medical Students Council, 1953
- Secretary, Students Representative Council, 1954
- Qualified M.B. Ch.B. 1958
- Qualified B.Sc. (Med) (Hons) Sport Science, 1985 (Cum laude)
- Internship – Victoria Hospital, Wynberg, Cape Town 1960
- Senior House Surgeon and Registrar, Edendale Hospital, Pietermaritzburg, Natal, 1961 – 1962
- In group General Practice, Kenilworth, Cape Town 1962 – 1976
- Sessional anaesthetic staff member, Victoria Hospital; Wynberg, Cape Town 1962 – 1964
- Company Medical Officer, Woolworths (Pty) Ltd 1977 – 1984 • In private practice confined to Sports Medicine 1986 -1991
- Committee and Advance Party Medical Member-Search and Rescue Organisation of the Mountain Club of South Africa 1965 – 1971 and 1983-1991
- Medical Adviser and Committee Member – South African Red Cross Society, Air Mercy Service, 1969 – 1989
- Leader-Peruvian Earthquake Medical Relief Expedition of South Africa to the disaster area of the Callejon de Huaylas, Peru, 1970
- Awarded Orden Hippolito Unanu, Peru, 1970
- Awarded Diploma de Honor, Carhuaz, Peru, 1970
- Awarded S.A Red Cross Society Long Service Medal, 1989
- C.E.D.H Homeopathy Course – 1993
- Acupuncture Foundation Course -1996
- Acupuncture Advanced Course – 1998
- Committee Member – South African Complementary Medicine Committee 1998 – 2004
- In general practice incorporating homeopathy and acupuncture -February 1994 – August 2004
- Reg. Homeopath – A.H.P.C. No A 7302 – May 1999
- Reg. Acupuncturist – A.H.P.C. No A 7302 – February 2001
- Retired from medical practice – August 2004
Research and Publications
- MAN’S PERFORMANCE AT ALTITUDE
Commissioned by the Angle American Corporation Ltd (1982)
- COLLAPSE FOLLOWING ULTRA-MARATHON ROAD RACES Physician and Sports Medicine J. (1986) 16 pp 88 – 94
(Our research: probably refers to: Sandell, R.C., M.D. Pascoe, and T.D. Noakes (1988). Factors associated with collapse during and after ultramarathon foot races. Phys. Sportsmed. 16(19): 86-94.)
- Presented research paper on COLLAPSE FOLLOWING ULTRA-MARATHON ROAD RACES at FIMS XXIII WORLD CONGRESS OF SPORTS MEDICINE, BRISBANE, AUSTRALIA, September 1986
- B-ADRENERGIC BLOCKADE RESTORES GLUCOSE’S ANTIKETOGENIC ACTIVITY AFTER EXERCISE IN CARBOHYDRATE-DEPLETED ATHLETES J. Physiol (1987) pp 439 – 454
(Our research: probably refers to: J Physiol. 1987 May;386:439-54. Beta-adrenergic blockade restores glucose’s antiketogenic activity after exercise in carbohydrate-depleted athletes. Adams JH, Irving G, Koeslag JH, Lochner JD, Sandell RC, Wilkinson C.)