Posted 08 August 2013
Herbex has started stating on their products, that it is a “Schedule 0” product. Our argument is that every aspect of the product packaging can be construed as advertising for the product, including colours and images. We argued that the use of “Schedule 0” was used to give the product an air of medical/therapeutic legitimacy by giving the impression that it is a medicine, when in fact based on the evidence, the product may be no more than a scam. (There is not a single study conducted on a single Herbex product confirming that the product works, and by using a negligible dose of an ingredient not proven to have any efficacy, it is clear that the product as a whole is useless. Herbex bases their claims of efficacy on the word of a retired homeopath. Scary stuff.
How did the ASA rule? “The issue of whether or not a medicinal product has a scheduling system or complies with it is an issue has to be administered by the Medicines Controls Councils (the MCC) and not the ASASA. The Directorate does not therefore have the jurisdiction to investigate the current complaint.“
[gn_note color=”#fef0b8″]Herbex Schedule Co / HA Steinman / 22194
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Herbex (Pty) Ltd Respondent[/gn_note]
31 Jul 2013
Dr H.A. Steinman lodged a consumer complaint against the packaging of Herbex Appetite control Fizzi tabs and Herbex Fat Burn Booster for Men. The claim “Schedule C0” appears on the side of both packages, just below the ingredient list.
In essence, Dr Steinman argued that the claim “Schedule C0” is misleading as no scheduling system for complimentary medicines exists. He explained that although there is a draft regulation to the Medicines and Related Substances Act of 1965, no government gazette has been issued by the Minister of Health informing the public that the Schedule has been made for Complimentary medicines. He also argued that the only probable explanation for the respondent to include this claim on its packaging, would be to lend the product an air of legitimacy, if not efficacy, by suggesting that the product will be or has been registered or approved by the MCC.
He referred to previous ASA rulings which found that the practice of reflecting MCC receipt numbers as “MCC registry numbers” in advertising was misleading. In a similar manner, the respondent is misleading the public as the Schedule is nothing more than a way to gain some credibility for its product.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The Directorate regarded Clause 4.2.1 of Section II (Misleading claims) as relevant.
The respondent submitted that in accordance with the definition of “advertising” as contained in Clause 4 of Section I, the word “C0” where it appears directly beneath the ingredient listing is per se not “intended to promote the sale leasing or use” of the product, and is hence not “promotional content”. Although the claim appears on packaging, the definition cannot be interpreted to mean that all the content of packaging is automatically considered to be “advertising”.
The respondent explained that the Scheduling status of a substance does not form part of the marketing or advertising of the product, and is only listed as part of the technical information of the product, and thus does not fall under the jurisdiction of the ASA. In any event, all new products launched in 2013 carry the words “Non Scheduled” as opposed to the “C0” complained of.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.2.1 of Section II of the Code states, “Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer”.
Firstly, while the respondent’s newly launched products ex facie carry the words “Non Scheduled”, there is nothing before the Directorate to indicate that this change will be implemented on all older products as well. The Directorate therefore still has to consider this complaint.
Secondly, while the complainant is correct in noting that the ASA has ruled against advertising that misleadingly implied MCC registration when none had been attained, this does not automatically render any and all references to registration or even scheduling “advertising” in terms of the Code.
Clause 4.1 of Section I stipulates that an “Advertisement” is “… any visual or aural communication, representation, reference or notification of any kind … which is intended to promote the sale, leasing or use of any goods or services; or … which appeals for or promotes the support of any cause”.
In prior matters where references to MCC registration were ruled against, this was typically because of creative copy communicating a misleading fact. In Silverlab Ionic Colloidal Silver Gel / R Jobson / 20489 (12 March 2013) for example, the claim disputed pertinently stated “All of our products are registered with the MCC”, which was not the case. Similarly, in Simply Slim / HA Steinman / 15605 (6 December 2010), the references to MCC registration were again done in a manner that required creative crafting, such as “Did Simply Slim receive a registry number from the MCC prior to relaunch? Yes. Simply Slim obtained a Registry Number 141468 for the new product from the MCC on 29 March 2010. You can view this MBR 20.8 document under Simply Slim – Product – MCC Registry Number.”
From the above instances it becomes clear that when creativity is employed to emphasise MCC registration to the extent that it will almost “jump out” at consumers and convince them to buy the product BECAUSE it is registered, it will likely be regarded as “advertising”.
In Colgate Optic White Toothpaste / Unilever / 21482 (15 March 2013), however, the Directorate held:
“There is nothing to suggest that the fluoride levels indicated on the respondent’s packaging is used as ‘promotional content’. There is no creative element present in its listing and nothing on the rest of the packaging draws attention to the fluoride levels in a manner that suggests that this is key feature and that consumers should buy this specific toothpaste because of its fluoride content. The Directorate agrees with the respondent that the ingredient list, in this specific context, is not intended to promote the sale or use of the product in a manner that would render it ‘advertising’.”
From the above, it is clear that for a claim or a communication to be considered as advertising, it must be intended to attract the attention of the consumers and elicit sale. In this case, the claim “Schedule C0” is placed right below the ingredient list, and below it are the recommendations, warnings and contact details of the respondent. The claim is written in a black font over a green background (for Herbex Appetite control Fizzi tabs) and white background for the Herbex Fat Burn Booster for Men packaging. There is no creative element present or anything that draws the attention of the consumers to the claim in question; neither does the claim make use of any promotional language or tools. Given this, we therefore do not believe that the claim as used in the advertisements constitutes “promotional content” to an extent that would render it “advertising”.
In EVOX 100% Whey Protein / HA Steinman / 21654 (26 June 2013) the Directorate had to determine whether a claim appearing in the ingredient list of a product constituted advertising as defined in the Code, and it held “While the complainant may or may not be correct in alleging that the claimed levels of protein are incorrect, this is not an advertising issue, but rather something that should be brought to the attention of the appropriate regulators, which in this instance appears to be the Department of Health.”
The issue of whether or not a medicinal product has a scheduling system or complies with it is an issue has to be administered by the Medicines Controls Councils (the MCC) and not the ASASA. The Directorate does not therefore have the jurisdiction to investigate the current complaint.