Posted: 17 November 2011
A consumer lodged a consumer complaint against the Homemark’s television commercial promoting its Detox Tea as a “Powerful, effective, cleansing herbal tea”, and a “full body detox in every cup”.
Some of the claims emphasised in the commercial are:
• “STIMULATE Digestive System”;
• “FIGHT Free Radicals”;
• “ENHANCE Immune System”;
• “BOOST Energy Levels”.
The voice-over also exclaims “… Plus, lose weight, improve your complexion, all with the amazing Detox Tea …” In essence, the complainant submitted that these claims are ridiculous and have no substance. As such, it is irresponsible to place such commercials on television.
The ASA agreed: These claims are not substantiated.
NB: Dr Paul Abrahams who tried to substantiate this product, has substantiated a number of other scam Homemark products. A complaint against Dr Abrahams has been laid with the Health Professions Council of South Africa (HPCSA) – the regulatory authority who regulates health professionals.
15 Nov 2011
Mr Jasper lodged a consumer complaint against the respondent’s television commercial promoting its Detox Tea as a “Powerful, effective, cleansing herbal tea”, and a “full body detox in every cup”. Some of the claims emphasised in the commercial are:
• “STIMULATE Digestive System”;
• “FIGHT Free Radicals”;
• “ENHANCE Immune System”;
• “BOOST Energy Levels”.
The voice-over also exclaims “… Plus, lose weight, improve your complexion, all with the amazing Detox Tea …”
In essence, the complainant submitted that these claims are ridiculous and have no substance. As such, it is irresponsible to place such commercials on television.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
The respondent effectively relied on a letter from Dr Paul Abrahams to verify the claim made. It added that Dr Abrahams has, in the past, also been accepted by the ASA as an independent and credible expert in the field to which these claims relate.
The letter from Dr Abrahams explains that he has “reviewed/researched numerous publications relating to the constituents of this product (which is imported by Homemark) as well as the product claims …”. He adds that “The combination of these natural ingredients is claimed to have the following effects:
Stimulate digestive system
Provides improved energy
Has a laxative effect which could help the digestive system to eliminate toxins from the body
Enhances immune system
Provides relief from constipation
Acts as a natural toning aid”
Further to this, he explains that the product has been submitted for approval by the Medicines Control Council of SA as a Complementary Medicine. In conclusion he states:
“In my opinion, based on the research performed, it is reasonable to conclude that, given the roles and functions played by the various constituents of Detox Tea, the claims listed above are adequately and reasonably substantiated and are not misleading save for the comment relating to the ‘elimination of toxins through urea and sweat’, which I saw as a comment on the website and have recommended be removed”.
He then lists 10 references / sources which appear to be what he based his opinion on.
The respondent also clarified that it has complied with Dr Abrahams’ instruction insofar as removing the one problematic claim from its website is concerned.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II requires advertisers to hold substantiation that either emanates from, or was evaluated by an independent and credible expert in the field to which the claims relate for all claims that are capable of objective substantiation.
There is no question that the claims quoted at the beginning of this ruling are capable of such objective substantiation. The question therefore arises whether the respondent has supplied satisfactory evidence in this regard.
In Homemark Remedy Blue Spray / HA Steinman / 13926 (10 December 2009), the Directorate accepted Dr Abrahams as an independent and credible expert. In this ruling, reference was also made to a ruling of the Final Appeal Committee under the reference Proxygen Remedy Health / Dr HA Steinman / 1854 (31 August 2006). Here too, the Final Appeal Committee accepted Dr Abrahams as a suitable expert.
Currently, there is nothing before the Directorate to deviate from this acceptance.
However, for the reasons set out below, the Directorate cannot accept the substantiation currently at hand:
It is trite that substantiation has to be product-specific, rather than ingredient-specific. Effectively, what the Directorate requires is for an independent and credible expert to unequivocally confirm that the product at issue, as is bought in the store, will deliver the claimed results when consumed at the recommended dose.
Furthermore, the manner in which the Directorate interprets substantiation and decides whether to accept or reject it has been the subject of a few appeals to the relevant higher committees within the ASA structures recently.
In Lifebuoy / Dettol / 14813 (27 August 2011), for example, the Advertising Industry Tribunal (the AIT) ruled as follows:
“While we accept and indeed agree that because the Directorate (or any other ASA body for that matter) invariably may not or will not have the technical expertise to evaluate technical or scientific documentary evidence, it will often be required to rely, if not heavily, upon any expert views or opinions furnished, this does not mean that the Directorate may relinquish its responsibility to ensure that sufficient documentary substantiation in fact exists to any such expert. It is accordingly required, as would any other administrative body, or a court of law, in a similar position, to assess any expert view proffered and satisfy itself as to the adequacy, at the very least, of the expert view.
In the instant case we do not believe that the Directorate did properly satisfy itself of the adequacy of the expert view and in our view did not properly apply its mind to the question of whether sufficient and adequate substantiation had been put before it to support the claims in issue.
As we have noted, Dr Jardine’s expert opinion constituted a letter comprising one paragraph in which all that he says is that he has perused the research protocol, has applied his own knowledge and understanding to the matter and that it was his opinion that the claims are substantiated. No reasons for this conclusion are provided, there is no mention of the nature of the tests conducted in the research protocol, the date when they were carried out and by whom, what methodology was used or even the results of the tests. In truth all that we are told is that in his opinion the claims are substantiated. In effect the ‘opinion’ amounts to no more than a say so by Dr Jardine that the claims are substantiated.
In our view this does not constitute a reasoned expert opinion. Even assuming that the requirements of Clause 4.1.4 may be met by the furnishing alone of an expert opinion without a copy of the supporting substantiating documents, or at the very least sufficiently detailed summary of the studies / documentation being evaluated, (in respect of which we do not express any conclusive view) the one paragraph letter from Dr Jardine does not in our view constitute adequate expert opinion for the purposes of Clause 4.1.4.
Because it does not contain any explanation of the research methodology adopted nor any explanation of the basis / grounds upon which he concluded that the results of the study support the claims in issue, it was impossible for the Directorate or indeed anyone else, regardless of their expertise or lack thereof, to in fact satisfy themselves of the soundness of Dr Jardine’s conclusions. In the result, we are of the view that the Directorate misdirected itself in taking the view that the letter constituted sufficient substantiation for the purposes of Clause 4.1.4 of Section II of the Code”.
The implication of this is that the Directorate has to interrogate the substance of substantiation, and cannot simply accept the say-so of an expert, irrespective of whether or not such an expert has been accepted by the ASA before.
In another matter under reference A Vogel Neuroforce / S Kaye / 16323 (9 November 2011), the Advertising Standards Committee (the ASC) considered an appeal against a Directorate ruling which rejected an expert on the basis that he was not a suitable independent and credible expert in the field. Here the ASC emphasised the point that if an “expert” is ambivalent or ambiguous in his / her verification, it cannot be accepted.
Finally, in Clicks Slim Drops Herbal Tincture / HA Steinman / 17986 (24 October 2011), the Directorate made the following point:
“It is trite that the Directorate cannot accept ingredient based substantiation as adequate for an entire product, even more so when there is nothing to show that the levels of ingredients are adequately ingested at the recommended dose, and that the ingredients do not contra-indicate one another. In essence, what is required is unequivocal verification that the claims at issue are true for the product as a whole when used at the recommended …”
These rulings reaffirm the Directorate’s approach in requiring clear, unequivocal and product-specific verification.
Despite not being provided with the relevant research relied on by Dr Abrahams, the Directorate was able to locate these articles, or abstracts thereof via a simple Google search. Without exception, not a single article relates specifically to the respondent’s product, and none of the respondent’s claims seem to appear in the abstracts / articles sourced by the ASA.
In addition, the Directorate notes that the study titled “Effects of essential oils from fennel (Foeniculi aetheroleum) and caraway (Carvi aetheroleum) in pigs” appears from http://www.ncbi.nlm.nih.gov/pubmed/17083431 to deal primarily with an attempt to determine “…alternatives to stabilize the health and performance particularly of the young animals [i.e. piglets] …” as a result of the ban of antibiotics as a feed additive. There is nothing in the submissions from Dr Abrahams as to why this article has any relevance to the respondent’s product and claims.
Similarly, the article titled “Investigation of Hepatoprotective Effect of Foeniculum vulgare Fixed Oil in Rats” deals with the effect of this oil in rats, and concludes that “…Foeniculum vulgare fixed oil has a potent hepatoprotective action against carbon tetrachloride-induced liver fibrosis in rats” (this is gleaned from the information contained on http://www.aensionline.com/rjmms/rjmms/2006/72-76.pdf). No explanation is provided as to why this study relates or even applies to the respondent’s product and claims, or why it can be extrapolated and applied as useful. The Directorate also notes that Dr Abrahams’ letter does not reflect the full title of the study, as the words “… in rats” are excluded from the title provided.
In addition, from the abstract of the article titled “A systematic review of the efficacy and safety of herbal medicines used in the treatment of obesity” (see http://www.ncbi.nlm.nih.gov/pubmed/19575486), it does not appear that any of the ingredients listed as contained in the respondent’s product formed part of this systematic review. When searching for the ingredients as listed in the letter by Dr Abrahams (being Foeniculum, Cassia Senna, Urtica Fissa E. Pritz leaves, Rosa Laevigita, Rhamnus frangula, Illicium verum, Prunus spinosa, and Ilex paraguarensi), the Directorate could not find any of them in the abstract available on this website.
Dr Abrahams’ letter is also silent on the claims “”FIGHT Free Radicals” and “… lose weight …” which were highlighted by the complainant.
Finally, the conclusion reached by Dr Abrahams is rather ambivalent, and not, in the view of the Directorate, unequivocal. He states that, in his opinion, it is reasonable (not factual) to conclude that the claims made are “adequately and reasonably” (again, not factually) substantiated.
For all the above reasons, the Directorate is not, based on the substantiation currently at hand, satisfied that the claims at issue are substantiated within the meaning of Clause 4.1 of Section II of the Code.
Given the above:
The claims “STIMULATE Digestive System”; “FIGHT Free Radicals”; “ENHANCE Immune System”; “BOOST Energy Levels” and “… Plus, lose weight, improve your complexion …” must be withdrawn;
The process to withdraw these claims must be actioned with immediate effect on receipt of this ruling;
The withdrawal of these claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
These claims may not be used again in their current format.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
Given the above, it is not necessary to consider Clause 4.2.1 of Section II at this time.
The complaint is upheld.
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