Posted 11 December 2012
A complaint was laid with the ASA against certain claims made for this product. The company assured the ASA that they had removed the claims and that “[I]t confirmed that the claims objected to ‘will not be used in future’.”
| Oscillococcinum / HA Steinman / 21248|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Glenmark Pharhaceuticals South Africa (Pty) Ltd Respondent
04 Dec 2012
Dr Steinman lodged a consumer complaint against a Glenmark Pharmaceuticals’ Internet advertisement promoting Oscillococcinum. The advertisement was published at www.glenmarkpharma.co.za, and claims, inter alia, that:
“… Oscillococcinum acts on the upper respiratory and respiratory system. This medicine is designed to correct imbalances within an unhealthy body and to stimulate the body’s reactive defense [sic] mechanism to overcome the disease, illness or condition”.
Under the “Product description” section, it notes the “Indications:” as “Prevention and treatment of influenza … & for recurring flu”.
The complainant submitted, in essence, that the claims are unsubstantiated as there is no proof that this product has any preventative capability.
In addition, there are a number of non-flu-like medical conditions that affect the upper respiratory and respiratory systems, and he could find no evidence that this product has any effect on these.
The complainant confirms his views with the principle author of the highly credible Cochrane Report, Dr Vickers.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) following provisions of the Code as relevant.
The respondent explained that it is the South African distributor for this product, but loaded this particular web page without the approval of the manufacturer. It went live on 26 September 2012. On 10 October 2012, the manufacturer requested the immediate removal of this page, which occurred on the same day.
While it appears that the complainant accessed this web page on 7 October 2012, he only lodged his complaint on 24 October 2012, at which point the advertising at issue had already been removed.
If confirmed that the claims objected to “will not be used in future”.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking may, at the discretion of the ASA, be accepted without considering the merits of the matter.
The respondent’s undertaking appears to address the complainants’ concerns insofar as this particular complaint is concerned. There is, accordingly, no need for the Directorate to consider the merits of the matter at this time.
The undertaking is accepted on condition that the claims disputed are not used again in future.
The respondent’s attention is also specifically drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires advertisers to remove advertising from any media in which they appear irrespective of whether or not the complainant specifically referred to such media.