Solal, guilty: another breach ruling

Posted 19 April 2012

Seems like Solal are simply unable to learn from their mistakes, nor from changing their vexatious attitude to the ASA, or those laying complaints with the ASA.. This attitude and approach clearly reflects directly on the personality, ethics and morals of the directors of Solal, and therefore, can one trust them at all? 

See also for previous related rulings.

Solal Technologies / JC Laithwaite / 15765
Ruling of the : ASA Directorate
In the matter between:
Dr JC Laithwaite Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

17 Apr 2012

In a ruling dated 30 August 2010, the Directorate upheld a complaint against the respondent’s advertising for its eye protective nutrients, which were punted on the premise that “… the eye damage that causes vision loss in old age, actually starts in early adulthood or even younger”. The advertising explained how the respondent’s products “Eyesight Protection” product would protect against Age Related Macular Degeneration. At the time, the respondent’s substantiation was rejected because the expert put forward (Dr Terry Grossman) was not held to be an acceptable independent and credible expert.

In a subsequent ruling, dated 24 January 2012, the Directorate rejected the respondent’s attempt at substantiating the claims and advertising at issue. The substantiation again included comments from Dr Terry Grossman, as well as additional comments from Dr Clive Novis, Professor Sarel Malan, and Dr Richard P Kratz. The Directorate also specifically pointed out that as a result of this, the previous ruling remained in effect and that the respondent was not allowed to use the advertisement or relevant claims.

On 26 January 2012, a complainant not party to this dispute, Prof Roy Jobson, lodged a breach allegation pertaining to the respondent’s website, arguing that the claims and advertising appearing here are in breach of the above-mentioned rulings.

In its reply dated 13 February 2012, the respondent (through its attorneys Fluxmans) not only denied the breach allegation but also requested that the breach investigation be suspended pending the outcome of its appeal (which had not yet been lodged at the time). It also attached a draft of the appeal it intended to lodge.

In a letter dated 14 February 2012, addressed to the initial complainant, Dr Laithwaite, the respondent’s attorneys stated, inter alia, as follows:

“… As already explained we have been instructed to address this letter to you in an attempt to avoid or minimise further legal costs being incurred in this matter. We are instructed and are accordingly obliged to notify you that in the event of you opposing our client’s appeal, our client intends to seek the costs of the proceedings from you inter alia regard being had to:

… the fact that you failed to attempt to amicably resolve the matter with our client prior to the complaint being lodged;

… the advertising claims which form the subject matter of the complaint are true and have been substantiated by the documentary evidence submitted by our client and any opposition would accordingly be unreasonable …”

In an email dated 2 March 2012, delivered to both the ASA and the respondent, Dr Laithwate confirmed that she would not oppose the appeal and would abide by any ASA decision.

In correspondence dated 7 March 2012, the Directorate informed the respondent that there was no opposition to the appeal or the request for condonation for late filing thereof. The respondent was also reminded that payment for this appeal was still outstanding, failing which the appeal will not be heard, and the decision on the breach allegation would be finalised.

In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

In a letter dated 8 March 2012, Fluxmans attorneys, on behalf of the respondent, argued that the ASA’s “… threat to proceed with the breach investigation [was] immature and inappropriate” because it had not yet received the ASA’s written decision on the issue of condonation for the late appeal, and had not yet received “… substantiation in the form of documents and vouchers indicating the true actual costs of the so called ‘non-refundable filing fee’ …” It added that it intends to proceed with the appeal and pay the “true actual costs of the first appeal” if the ASA provided written reasons for a decision to grant condonation of the late appeal. Finally, it noted its belief that the Directorate is biased and should recuse itself from the matter.

The Directorate replied stating that:

“… our letter dated 29 February 2012 informed you that Ms Laithwaite had no objection to the application for condonation and she did not provide reasons for that.

You were also informed that a non-refundable filing fee was payable and the deadline was 5 March 2012 …”

In addition, the Directorate drew specific attention to the provisions of Clause 8.9 of the Procedural Guide, which states “Where payment is required, such appeal will not be considered to be lodged until such time as proof of payment is received by the ASA”.

The respondent’s attorney, replied stating that “…You have clearly not read my earlier email. I suggest you read and consider it before you respond”. As a result, the Directorate again wrote stating “… we have advised you that Ms Laithwaite had no objection to the application for condonation and she did not provide reasons for that … We reiterate that you were notified that your client’s application for condonation was not opposed, and therefore payment of the Appeal fee was required … In [the] absence of proof of payment, as required by the Code, the appeal will not proceed and the Directorate will proceed with the breach investigation”.

The respondent again reiterated its view that the Directorate has not yet provided a written decision in regards to the application for condonation of the late appeal and that the Directorate is hiding the true costs of an appeal. It also again stated that the Directorate is biased and ought to recuse itself from the matter.

When the Directorate explained that it was of a view that all prior correspondence clarified the issue, the respondent again requested a ruling with reasons relating to its application for condonation, as well as written reasons for the Directorate’s “… ‘decision’ to refuse to deliver a written ruling/decision with reasons in respect of our client’s condonation application”. On the same day, the respondent also requested “… written reasons from you in regard to the Directorate’s decision in having refused to recuse itself in Solal matters, including the breach investigation of this matter …” The Directorate was also threatened with legal action. Various subsequent letters were received that, for the most part, reiterated the requests for written reasons on the issue of condonation, disclosure of the true costs of an appeal, written reasons for the Directorate’s refusal to recuse itself and impending legal action.

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

The respondent’s pattern of disputing every decision made by the ASA (whether in relation to a complaint or merely procedural and administrative in nature) is well documented in other rulings. This does not serve any purpose other than delay proceedings and cause undue prejudice to a complainant in any matter. The Directorate sees no need to entertain all the arguments and potential red herrings put up by the respondent.

As is clear from the detailed summary of correspondence above, the respondent was informed at every turn that there was no opposition to the request for condonation of its late appeal or to the actual appeal, and that the only hurdle standing in the way of having the appeal heard by the Advertising Standards Committee was payment of the appeal fee.

The respondent has been advised of this on more than one occasion, and it was pointed out that the Procedural Guide stipulates that an appeal is not considered “lodged” if any money is still outstanding. Given the respondent’s persistent failure to pay the fee, there is no reason for the Directorate to proceed with the appeal. It should also be noted that any attempt to proceed with an appeal now may well be subject to a new request for condonation, as the respondent elected not to act when it learnt that there was no opposition to its initial request for condonation.

As the Directorate has not say over the actual fee, this is not an issue to address in the ruling.

Finally, in relation to the request for the Directorate to recuse itself on the basis of the respondent’s perception of bias, this has been dealt with in part in the decision under the reference Solal Stress Damage Control / K Charleston / 19746 (22 March 2012). The relevant comments need not be repeated here, but the Directorate again stresses that a mere disagreement about procedures cannot by any stretch of the imagination be indicative of bias. The respondent is held to the same rules and procedures as any other advertiser before the ASA. In addition, the respondent is a member of the Health Products Association, who in turn is a member of the ASA. By implication, the respondent has therefore agreed to the rules and procedures as set out in the Code.

In dealing with the actual breach allegation, there is no dispute that the advertising appeared on the respondent’s website as late as 26 February 2012. In fact, at the time of ruling, the advertising was still available on the respondent’s website.

The complainant who brought the breach allegation before the ASA took issue with the following claims, which appears on the respondent’s website and on the labelling which is accessible via the respondent’s website:

Helps protect the eyes against Age Related Macular Degeneration (ARMD) the main cause of age related eye damage, reduced vision and blindness. Eyesight ProtectionTM helps protect against the four main causes of ARMD, namely everyday UV – sunlight exposure, free radical damage, elevated homocystene (a toxic amino acid that occurs naturally in the body) and glycation (a process that ocurrs naturally in the body, similar to oxidation that damages and deforms structural proteins and sugars found in the eye). Eyesight ProtectionTM may also help prevent low vision loss, eye fatigue, intolerance to glare, cataracts, retinopathy and glaucoma”.

The original advertisement was headed “Interesting facts about your health” and stated, inter alia, “FACT 1: The eye damage that causes vision loss in old age, actually starts in early adulthood, or even younger”.

The copy further stated:

“Everyday sunlight exposure causes a type of damage to the eyes known as macular degeneration. This damage accumulates over time and ultimately results in reduced vision and possibly even blindness in old age (known as ARMD: Age Related Macular Degeneration). This damage begins at a young age, even in childhood, but only manifests with reduced vision in old age. To protect your eyes, adults and children should wear UV-protective sunglasses outdoors during sunny days. You also need to begin supplementation with eye-protective nutrients from early adulthood.”

Readers were encouraged to start using this product “… from early to mid-adulthood” and that the product should be “… used on a regular daily basis thereafter, even in the absence of symptoms …”

It explained how the respondent’s “Eyesight ProtectionTM” helped “protect the eyes against eye damage from UV-sun rays …”, “Minimises low-light vision loss, eye fatigue, intolerance to glare and other eye disorders” and should be used “… on a regular basis … even in the absence of symptoms …”

It is accepted that the current claims on the respondent’s website and labelling are not verbatim the same in terms of actual phraseology and semantics. However, they still communicate that the respondent’s product is able to protect against a condition called “Age Related Macular Degeneration (ARMD)” as was the case in the original advertisement. This impression was held to be unsubstantiated in the original ruling (published over a year and a half ago) as well as the subsequent rejection of new substantiation published in February 2012.

The Directorate is therefore satisfied that the respondent’s current advertising and packaging are in breach of the original ruling, and therefore in breach of Clause 15 of the Procedural Guide.

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