Posted 06 July 2011
In Revivo Tea / P Linzer / 13898 (20 August 2009) the Directorate accepted the respondent’s voluntary undertaking to close the websites, www.herbalpharmacy.co.za and www.revivotea.co.za on condition that they were not used again in future. The Directorate also ruled that the respondent submitted no independent verification from a credible expert in this field to show that its product, as a whole, has any effect on HIV and AIDS. The ASA Directorate investigated the complaint as a possible breach of the previous ruling for ongoing ads being placed in the form of an “Ads by Google” below the editorial content.
Revivo tea / P Linzer / 13898
Ruling of the : ASA Directorate
In the matter between:
Mr Patrick Linzer Complainant(s)/Appellant(s)
AConite Medical Supplies cc Respondent
In Revivo Tea / P Linzer / 13898 (20 August 2009) the Directorate accepted the respondent’s voluntary undertaking to close the websites, www.herbalpharmacy.co.za and www.revivotea.co.za on condition that they were not used again in future.
The Directorate also ruled that the respondent submitted no independent verification from a credible expert in this field to show that its product, as a whole, has any effect on HIV and AIDS.
The respondent further failed to provide proof that its product, claims, references or recommendations “accord with full product registration by the MCC”. Therefore the claims were held to be unsubstantiated and in contravention of Clause 2 of Appendix F.
The websites complained of at the time promoted the respondent’s “Revivo Herbal Tea for HIV”. The website www.revivotea.com stated, inter alia, as follows:
“27 Herbs were tested against the HIV virus in an independant (sic) laboratory in California and again in Hong Kong.
11 of them showed significant activity against the HIV virus.
5 of them destroyed more than 95% of the virus…the safest and most effective of these herbs are contained in Revivo.
Shouldnt you know more about Revivo then? Read more below:
Welcome to our website, we have developed Revivo based on extensive research into effective herbs for HIV, as well as the ancient wisdom of Chinese Herbal Medicine, which has been treating HIV and AIDS successfully even before HIV and AIDS was recognised. One of the research studies we used to select the herbs that go into Revivo is the study mentioned above, …
In the study, researchers took 27 herbs which are commonly used in Chinese Herbal Medicine for HIV. These herbs were all individually prepared into a ‘decoction’ and the HIV virus was added to the mixture, upon contact 5 of the herbs almost completely destroyed the virus and 6 others had significant activity against the virus. Of the herbs, some of the best acting herbs which are also safe to use were Prunella Vulgaris, Arctium Lappa, and Nelumbo Nucifera which are all contained in Revivo”.
The respondent was instructed to withdraw the advertising complained of with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use them again in its current format.
SUBSEQUENT TO THE RULING
On 23 May 2011 Mr Indra de Lanerolle, lodged a complaint regarding the respondent’s advertising of Revivo Tea which appeared on the website, http://www.timeslive.co.za/specialreports/elections2011/article1076870.ece/DA-landslide-in-Cape-Town. The advertisement takes the form of an “Ads by Google” below the editorial content, and reads as follows:
“Are YOU HIV+? These Are The Herbs The Greedy AIDS Industry Doesn’t Want You To Know! revivotea.com”.
In essence the complainant submitted, inter alia, that the advertisement implies that the herbal product is an alternative to properly tested medicines such as ARVs. The website offered no scientific evidence that this is an effective remedy.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
Given that the new complaint appeared to relate to the same product and similar claims as those previously considered, the Directorate investigated the complaint as a possible breach of the previous ruling. Clause 15 of the Procedural Guide (Enforcement of rulings) was therefore taken into account.
The respondent, inter alia, denied that it was in breach of the previous ruling, and pointed out that it had taken measures to correct the material on its website. It further added, inter alia, that it is not running the advertisement that the complainant is referring to, and its current advertising material makes no mention of HIV/AIDS or in fact any other illness for that matter.
The respondent further argued, inter alia, that it does not run the advertisement with the description as provided by the complainant as the Times Live website does not belong to it and does not have control over who places advertisements on that website, if indeed such advertisement was placed. It confirmed, however, that the website www.revivotea.com does belong to it.
In an unsolicited email sent subsequent to this, the respondent confirmed that it has been informed by its legal counsel that “… the testimonials on our website and some other content may be in breach of the advertising code and are thus removing those testimonials which reference HIV or AIDS or cd4 count … it is our intention to comply with the code …”
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. At present, it must be pointed out that the Directorate is not tasked with considering whether the respondent’s website is of concern, as the complaint only relates to the Google advertisement as objected to. The Directorate will therefore not at this time make a determination as to whether the respondent’s website complies with the original ruling. It is, however, encouraging to note the respondent’s comments that it is obtaining advice and endeavouring to comply with the ruling.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
The complainant’s issue relates to the Times Live website which contained the respondent’s advertising. The advertisement, at the bottom of the page appears in an “Ads by Google” section, and reads “Are YOU HIV+? These Are The Herbs The Greedy AIDS Industry Doesn’t Want You To Know. revivotea.com”.
At the time of ruling, the URL where the complainant noticed the advertisement was no longer accessible. However, when the complaint was lodged, the Directorate was still able to access it, and as such has a printout of the relevant page including the disputed advertisement.
The respondent denied having any involvement in advertising on the Times Live website. In the absence of anything to contradict this submission, the Directorate has no reason to doubt this insofar as the Times Live website is concerned. However, the advertisement at issue was a “Google Ad”, which is somewhat of a different type of advertisement.
From Google’s information, it appears that any person or entity can use Google Ads to market. The premise, put simply, is that an advertiser firstly selects a few key words, and when anybody does a search on Google using one or more of those key words, that advertiser’s advertisement may appear. As such, it is extremely unlikely that an advertisement promoting the respondent’s website and product simply materialised as a “Google Ad” without the respondent having gone through the process of creating it, and by implication, having it published.
As previously ruled, Appendix F prohibits any recommendations, products, treatments or advice in relation to AIDS unless full registration and approval with the MCC exists. There is nothing before the Directorate to show that the respondent complies with this requirement, and the respondent has not alleged that this is the case. The reference to “HIV+?” and having herbs that “… The Greedy AIDS Industry …” doesn’t want publicised can only reasonably be interpreted to mean that the respondent is promoting its product as a treatment for AIDS, which is clearly in contravention of this clause.
As such, the Directorate is satisfied that the respondent’s “Google Ad” is indeed in breach of the previous ruling, and therefore a contravention of Clause 15 of the Procedural Guide.
The respondent is instructed to ensure that its Google Ad is withdrawn with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not used again in future.
Given that the respondent has taken advice on how to ensure its website complies with the Code, the Directorate will not at this time impose any additional sanction. However, the respondent is cautioned that further breaches of the Code or relevant rulings may result in more severe sanctions being imposed in accordance with Clause 14 of the Procedural Guide.
The breach allegation is upheld, but no sanction is imposed at this time.
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