Posted 15 September 2011
This ruling is unfortunate and occurs when regulations change and complainants are not aware of these, and illustrates the problem with lack of action by the MCC and subsequent consequences.
Holotropic Slimfast Hoodia / A Dormer / 16264
Ruling of the : ASA Directorate
In the matter between:
Mrs Alvida Dormer Complainant(s)/Appellant(s)
Holotropic SA (Pty) Ltd Respondent
Mrs Dormer lodged a consumer complaint against the respondent’s packaging for its “SLIMFAST HOODIA 1200 WITH CERTIFIED GENUINE SOUTH AFRICAN WILD HOODIA GORDONII”.
The packaging features images of the Hoodia plant, with a tape measure around it, and contains, inter alia, the following claims:
“The mood enhancing, energising and appetite suppressing qualities of Hoodia gordonii have been known to the indigenous San people of the Kalahari Desert for thousands of years. Hoodia acts on the mid-brain causing neuron nerves to inhibit your desire to eat. As it suppresses your hunger, it enables you to take control over your eating habits. Besides alleviating hunger, this unique desert cactus also produces a state of alertness, but without the nerviness and tension associated with many common diet products”.
“SLIMFAST HOODIA 1200 contains 100% wild-grown Hoodia gordonii …”
In essence, the complainant sketched her perception of how the Medicines Control Council and other relevant authorities have failed to protect consumers from unscrupulous advertisers who make claims that are calculated to “… artificially … discredit Highly Ethical Reputable Pharmaceutical Companies and their Sympathomimetic Slimming Aids …”
She explained that these claims are dishonest, and exploitative of vulnerable and uninformed consumers searching for a cost effective miracle cure to fight obesity. She questioned the veracity of the claims and requested a complete and total recall of all products making such claims.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:
Clause 2 of Section II – Honesty
Clause 4.2.1 of Section II – Misleading claims
Clause 18.104.22.168 of Section II – Misleading claims (Copyright and industrial property rights) [it should be noted that this clause no longer exists in the ASA Code] Clause 4.2.2 of Section II – Puffery
Clause 4.2.4 of Section II – Expert opinion
Clause 4.2.5 of Section II – Statistics and scientific information
Appendix A – Medical and related products and advertisements containing health claims [it should be noted that this appendix has been completely repealed] Clause 2.1.6 of Appendix E – Obesity
Clause 2.2.2 of Appendix E – Diet plans (hastening the process of mass loss)
Appendix F – References to diseases in advertising
The respondent submitted a comprehensive reply, disputing the accuracy of the complainant’s assumptions, as well as enclosing copies of permits in accordance with “Nature Conservation Ordinance 1974 Permit” for the purchase and use of protected flora.
It also attached literature dealing with the uses and benefits of Hoodia and its narurally occurring bioactive compound P57.
It added that it is completely “in the dark” as to the alleged conspiracy suggested by the complainant insofar as distorting the view of regular medicines or influencing the operations of the Medicines Control Council.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
At the outset, it should be noted that the relevant sections of Appendix A as complained of by the complainant have long since been repealed, and made way for a new appendix, with vastly different requirements. This effectively means that none of the requirements identified by the complainant insofar as this appendix is concerned can be considered by the Directorate.
Secondly, the Directorate also notes that the complainant raised several concerns about the use of, or reference to “obesity”. The rules identified by her (Clause 2.1.6 of Appendix E and also Appendix F) read as follows:
Clause 2.1.6 of Appendix E:
“Obesity is a condition requiring medical attention and treatment. No claims referring to obesity in advertisements directed to the general public. (See Appendix F.)”
Appendix F, in turn, lists a host of diseases and ailments to which no reference should be made, unless such reference accords with full product registration and approval by the Medicines Control Council. One such condition listed is “Obesity or overmass (see appendix E Slimming)”.
The words “obesity” or “overmass” do not appear anywhere on the respondent’s packaging. As such, the provisions of Clause 2.1.6 of Appendix E and the provisions of Appendix F insofar as they relate to “Obesity or overmass” do not apply to this complaint.
Thirdly, the Directorate points out that Clause 22.214.171.124 also does not exist in the Code anymore, meaning that the complainant’s dispute in relation to this clause also falls away.
In dealing with the remainder of the clauses identified by the complainant, it would appear from reading the complaint that the motivation, or grounds for the complaint are essentially that “This Manufacturing Company of this above Natural Herbal Pure Hoodia Gordonii Slimming Remedy / Appetite Suppressant, make Consumers victims of artificial Market Positioning and potential Drug Price Wars between unscrupulous operators i.e. This Manufacturing Company … plus further lay claims that all other Hoodia Gordonii products are of dubious origins …”. She adds that a variety of these types of drugs sometimes contain Benzedrine (Amphetamine) and that drug addicts abuse them to seek euphoria.
An argument is also made as to why certain sympathomimetic products should be declassified or reclassified as safe, as the complainant does not believe they pose a health risk as decided by the Medicines Control Council.
Given this, it would appear that the complainant’s cause for complaint is not related to the advertising content per se, but rather with the nature of, and manner in which the MCC have controlled, or failed to control, this industry. This is not a concern that can be addressed via the ASA, and therefore is not something that the Directorate can rule on at this time.
Accordingly, the complaint cannot be ruled on at this time, as it appears to relate to matters which fall outside of the scope and mandate of the ASA and the Code of Advertising Practice.
The complainant is advised to take these issues up with the MCC directly.