Milk Galore Juice – ASA ruling

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Posted 29 May 2015

milkgaloreA consumer lodged a consumer complaint against a Milk Galore’s Internet advertisement promoting the Milk Galore juice which made, inter alia, the following claims:
  • “…helps to increase breast milk”
  • “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…”
  • 100% freshly squeezed fruits and herbs
  • “…increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…”

The complainant argued that the advertisement is misleading as it claims that the product will, among other, increase milk supply but failed to substantiate the said claim even after repeated requests.

The ASA ruled in favour of the complainant.

Milk Galore Juice / E Kamman / 2015-373f

Ruling of the:  ASA Directorate

In the matter between:

MS ELLEN KAMMAN Complainant(s)/Appellant(s)

EXQUSITE MANUFACTURERS (PTY) LTD t/a MILK GALORE Respondent

06 May 2015

http://www.asasa.org.za/rulings/milk-galore-juice-ekamman-2015-373f

Ms Kamman lodged a consumer complaint against a Milk Galore’s Internet advertisement promoting the Milk Galore juice. The advertisement was published at www.milkgalore.co.za.

The advertisement contains, inter alia, the following claims:

  • “…helps to increase breast milk”
  • “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…”
  • 100% freshly squeezed fruits and herbs
  • “…increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…”

COMPLAINT

The complainant submitted that the advertisement is misleading as it claims that the product:

  • Will increase milk supply but failed to substantiate the said claim even after repeated requests.
  • Will promote a faster let-down to alleviate the symptoms of colic, when a faster let-down is not known to alleviate the symptoms of colic.
  • Is 100% freshly squeezed fruits & herbs whereas the ingredients list is contradictory.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint the following causes was considered relevant:

  • Clause 4.1 of Section II (Substantiation)
  • Clause 4.2.1 of Section II (Misleading claims)

RESPONSE

Sim & Botsi Attorneys Inc. on behalf of the respondent, submitted, inter alia, that:

  • It has approached entities approved by the South African Market Research Association to conduct a survey on its behalf.
  • The complainant’s submission that the product is “made out of 100% freshly squeezed fruits and herbs” is out of context.
  • It will amend the claim “Increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” to “Increases overall breast-milk supply….”

The respondent also attached the three published documents titled “Infatile Colic – Do we understand Etiology (Sumitha Nayak, Consultant Pediatrician, The Children’s Clinic, Bangalore, India), “Thai medicinal plants promoting lactation in breastfeeding women”  (P. Luecha – Faculty of Pharmaceutical Sciences, Khon Khaen University 4002, Thailand) and K Umehara – School of Pharmaceutical Sciences, University of Shizuoka, 52-1 Yada, Shiziouka 422-8526, Japan) and an article titled “A review on therapeutic potential of Nigella sativa: a miracle herb”, published in the Asian Pacific Journal of Tropical Biomedicine in 2013, as well as a report from Dr S C Khoza, Registered Homeopath, practicing at Holistic Wellness & Spine Centre.

ASA DIRECTORATE RULING

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

Preliminary issues

  • The complainant also referred to a poster but did not avail a copy of such to the Directorate, and the Directorate will therefore limit this ruling to the claims that appears on the copy of the website advertising that the complainant provided.
  • The Directorate will not deal with the claim “100% freshly squeezed fruits and herbs” because the complainant’s submission is inaccurate as the said claim is not part of the advertisement in question.

Lactation Stimulant

Clause 4.1 of Section II specifies that advertisers must hold in their possession acceptable proof that either emanates from, or was evaluated by an entity that is regarded as an independent and credible expert in the field to which the claims relate. It is also trite that substantiation should relate to the product being advertised, when consumed at the recommended dose, as this is ultimately what the consumer purchases and how it is applied.

The complainant effectively asked for substantiation of the claim that the respondent’s product assists in…”increasing breast milk” and that it has “…a solution that has incorporated natural herbs that stimulates lactation for breastfeeding women”.

Clause 4.1 of Section II of the Code requires advertisers to hold satisfactory documentary evidence of any direct or implied claims made. It stipulates that such evidence must emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate.

It is also trite that the Directorate requires product-specific substantiation which unequivocally states that taking the advertised product, as bought and at the recommended dose, will deliver on the advertised claims. When one considers the advertising from a reasonable perspective, the only conclusion that can be drawn is that the product being advertised contains the relevant ingredients that will stimulate lactation in breastfeeding women by increasing breastmilk.

It should also be noted that Clause 4.1.2 of Section II states, inter alia, that documentary evidence “shall have market relevance”. Clearly the respondent is not promoting or selling individual nutrients and extracts in isolation, but rather its own combination of such ingredients and extracts as contained in its product. For its evidence to have “market relevance” it would have to apply to the actual product available on the market under current conditions.

In light of the above, and in keeping with the long-standing approach, the Directorate is satisfied that the respondent ought to hold adequate, independent substantiation that unequivocally verifies that its product as is available on the market, when used at the recommended dose, will deliver on its efficacy claims. No such independent product-specific verification was placed before the Directorate.

Given the inadequacies highlighted above, the Directorate does not accept the substantiation relied on by the respondent, and accordingly finds the claims “…helps to increase breast milk” and “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…”   are misleading and unsubstantiated, and are therefore in contravention of Clauses 4.1 and 4.2.1 of Section II of the Code.

In light of the above, the respondent is required to:

  • withdraw the claims “…helps to increase breast milk” and “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…” in their current format;
  • the process to withdraw the claims “…helps to increase breast milk” and “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…” must be actioned with immediate effect on receipt of the ruling;
  • the withdrawal of the claims”…helps to increase breast milk” and “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…” must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
  • the claims “…helps to increase breast milk” and “Milk Galore has a solution that has incorporated natural herbs that stimulates lactation…” may not be used again in its current format.

The complaint is upheld in this regard.

Promotes a faster let-down – Voluntary undertaking

In terms of the Code and a long-standing principle held in previous rulings, the Directorate has discretion in terms of deciding whether or not an unequivocal undertaking to remove or amend the advertising complained of is an adequate resolution to the matter. When such undertakings are accepted (which is often the case), it will be done because the undertaking addresses the concerns raised in the complaint/s.

Over the years, however, there have been instances where the Directorate did not believe a mere withdrawal of the advertising was sufficient. This will usually be in instances where, for example, the undertaking is merely given in an attempt to avoid sanctions, or where the proposed amendments would not adequately address the concerns (refer Mavericks / FM Boulle and Another / 11224 (4 August 2008) for example).

For the reasons set out more fully above, under subtitle “Lactation Stimulant”, the Directorate is not satisfied that the amendment of the claim “Increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” to “Increases overall breast-milk supply….” adequately addresses the concerns raised by the complainant in a manner that is acceptable to the Directorate and is also in line with the requirements of Clause 4.1 of Section II.  The respondent’s undertaking is therefore not accepted as a final resolution as the suggested amendments still short of substantiation.

Promotes a faster let-down – Merits

Clause 4.1 of Section II specifies that advertisers must hold in their possession acceptable proof that either emanates from, or was evaluated by an entity that is regarded as an independent and credible expert in the field to which the claims relate. It is also trite that substantiation should relate to the product being advertised, when consumed at the recommended dose, as this is ultimately what the consumer purchases and how it is applied.

The complainant effectively asked for substantiation of the claim that the respondent’s product “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…”.

Clause 4.1 of Section II of the Code requires advertisers to hold satisfactory documentary evidence of any direct or implied claims made. It stipulates that such evidence must emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate.

It is also trite that the Directorate requires product-specific substantiation which unequivocally states that taking the advertised product, as bought and at the recommended dose, will deliver on the advertised claims.

It should also be noted that Clause 4.1.2 of Section II states, inter alia, that documentary evidence “shall have market relevance”. Clearly the respondent is not promoting or selling individual nutrients and extracts in isolation, but rather its own combination of such ingredients and extracts as contained in its product. For its evidence to have “market relevance” it would have to apply to the actual product available on the market under current conditions.

In light of the above, and in keeping with the long-standing approach, the Directorate is satisfied that the respondent ought to hold adequate, independent substantiation that unequivocally verifies that its product as is available on the market, when used at the recommended dose, will deliver on its efficacy claims. No such independent product-specific verification was placed before the Directorate..

Given the inadequacies highlighted above, the Directorate finds the claim “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” is misleading and unsubstantiated, and is therefore in contravention of Clauses 4.1 and 4.2.1 of Section II of the Code.

In light of the above, the respondent is required to:

  • withdraw the claim “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” in its current format;
  • the process to withdraw the claim “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” must be actioned with immediate effect on receipt of the ruling;
  • the withdrawal of the claim “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
  • the claim “increases overall breast milk supply, promotes a faster let-down to alleviate baby’s colic symptoms…” may not be used again in its current format.

The respondent’s attention is also specifically drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires offending claims to be removed from any media in which they appear.

The complaint is upheld in this regard.

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