Posted 19 November 2012
A consumer laid a complaint with the ASA against the claims for this product. A number of claims were made, and in particular, that this product (The Anti-Aging Pill), can have an impact on aging. A previous deconstruction on CamCheck of this product, showed that the claims were extrapolated from worms, rats, mice and not based on human studies. The ASA evaluated the evidence supplied by Solal and found that the evidence was insufficient to substantiate the claims.
This ruling is particularly important for:
- Solal have used ad hominem attacks on the complainant (An ad hominem (Latin for “to the man”), short for argumentum ad hominem, is an argument made personally against an opponent, instead of against the opponent’s argument.)
- In this ruling, the ASA (non-scientifically trained) were able to discern that the evidence that Solal put forward (scientifically trained) were non supported by human studies and that the dose was not scientifically evaluated but thumb suck: (“There is, however, nothing in the respondent’s submissions to suggest that this research findings are also applicable to humans and to the respondent’s product as available on the market and when consumed at the recommended dose”)
- The ASA concurred that not only were the claims misleading, but the name of the product (“The Anti-Aging Pill”) was misleading to average consumers, therefore the name of the product has to be removed.
- In spite of having deconstructed the claims for this product on CamCheck and showing with absolute clarity that research was only applicable to mice, flies, nematode worms, yeast, and eukaryotes, that Solal continued to a make claims for this product (albeit amended).
- The ASA will now consider the implementation of sanctions against Solal
| Solal Anti-Aging Pill / HA Steinman / 18348|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
15 Nov 2012
Dr Steinman lodged a consumer complaint against the respondent’s online advertising for its “ANTI-AGING PILL” appearing on www.solaltech.com.
The website contains a pack-shot as well as the full label for the product, and a comprehensive explanation of its pharmacological action, indications, warnings and interactions.
The complainant specifically took issue with the product’s name, as well as the following claims made under the headings “PHARMACOLOGICAL ACTION” and “INDICATIONS”:
“Preliminary research indicates that long term administration of resveratrol can increase lifespan, improve heart function”;
“Pterostilbene has also been shown to increase learning and memory”;
“Grape seed polyphenols also reduce the formation of skin wrinkles, build new collagen and protect skin-elastin fibres”.
In essence, the complainant argued that the Natural Medicines Comprehensive Database, a source of information that Solal regards as a credible source, states that “There is insufficient reliable information available about the effectiveness of resveratrol”, and lists no effects on anti-aging.
In addition, “Pterostilbene” does not exist on this database, but according to Wikipedia, the results achieved on animals may not translate into the same effect on humans. PubMed also refers to the same study relied on in Wikipedia.
It is therefore evident that there is insufficient evidence to support the claims that this product will result in an anti-aging effect in humans. In fact, there is no single study that tests this product formulation on humans. The complainant added that the product name “The Anti-Aging Pill” is also misleading as it gives consumers an impression that the product could deliver such results, when there is no evidence that this is possible.
The respondent has had repeated transgressions before the ASA and therefore an Ad Alert is warranted.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.1 of Section II of the Code was considered relevant.
Fluxmans attorneys, on behalf of the respondent argued as follows:
The complaint is academic as the advertising has been removed already as part of the respondent’s constant updating of its website;
The Directorate did not identify the relevant clauses that were to be considered, and neither did the complainant, meaning that the complaint is not procedurally valid at the time of responding;
The Directorate is biased against the respondent;
The Directorate’s approach in expecting product-specific evidence is improper, as a complementary medicine is not required by the relevant authority (the Medicines Controls Council) to hold such evidence, because they are regarded as generic medicines;
The provisions of the Code dealing with Misleading claims are not applicable, as the advertising expresses a view on complementary medicines, which is the subject of controversy (refer Clause 2.4 of Section I);
The complainant is inaccurate in his interpretation of the advertising, which, in reality, clearly express any efficacy as a possibility, as opposed to a guaranteed fact.
It also attached documentation in support of the relevant claims contested by the complainant, and argued that such documentation should be regarded as confidential in terms of the Code.
In a subsequent response, it contended that the complainant was vexatious, and actually a competitor complainant, and that the complainant has no locus standi to lodge the complaint.
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 submitted that the advertising claims at issue (being the three claims listed at the top of this ruling) “… no longer appear on our … website or product, and our client is no longer using [these claims] … [the respondent] has no intention of using [these claims] and, as mentioned above, the complaint regarding [these claims] is entirely academic.
Given this, the Directorate agrees that there is no need to consider the merits of the matter insofar as these claims are concerned, as they have been removed, and the respondent has indicated that it would not use them again in future.
Accordingly, the Directorate, at its discretion afforded by the Code, accepts this as an adequate resolution to the matter, on condition that the claims disputed are not used again in their current format.
The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide.
In relation to the product name “ANTI-AGING PILLTM”, it effectively argued that the probable impact of the advertisement as a whole on those who are likely to see it would be that this product “can” or “might” result in the claimed anti-aging properties or effects. It submitted that the complainant is attempting to attribute an implicit meaning to the claims that is simply not expressed when one considers the actual wording of the claims. It added that the claims as they are actually expressed are supported by the documentation submitted.
When deliberating on matters, the Directorate has to take into consideration the advertising as a whole, and not only the select parts objected to. Considering the remainder of the advertising as it appeared on the respondent’s website, it would appear that the respondent is attempting to bring this type of efficacy (anti-aging) into the realm of reality, implying factual effect, rather than possibility.
Directly below the product name, it states “Activates the life extending anti-aging gene … Protects the heart, brain and immune system … Slows skin damage and skin aging”. These claims are communicated as fact, not as potential or puffery. By referring to, for example, the activation of “the life extending anti-aging gene” a consumer is led to believe that this will be done by consuming the product. This is further emphasised by the words “Scientifically PROVEN formulation” (our emphasis).
Considering the advertising as a whole, the Directorate is therefore satisfied that the respondent is communicating its efficacy as a matter of fact, and not one of possibility as it contended.
Clause 4.1 of Section II requires advertisers to hold independent verification from a credible expert entity to show that the claims at issue are true and supported by acceptable evidence.
It is trite that the Directorate is not a technical or scientific expert. For this reason, it has to rely on the verification of advertised claims by independent and credible experts in the field. The verification provided needs to specifically verify the exact claims used for the product as a whole (see, for example, Aquafresh / Colgate-Palmolive / 17956 (12 July 2011)).
In Aquafresh / Colgate-Palmolive / 17956 (30 November 2011), the Advertising Industry Tribunal (the AIT) upheld the Directorate’s approach in rejecting substantiation of a technical nature in the absence of express verification from an independent and credible expert in the field. The AIT specifically noted as follows:
“After considering the written appeal documents and listening to the arguments presented, the AIT found that it was in no better position than the Directorate was. The independence of the studies from which abstracts or summaries had been taken was not questioned but there was no acceptable independent expert evidence submitted linking these to the product or the product claims”.
The respondent provided various abstracts, or in some instances the full research articles that it relied on in making its claims. It did not, however, provide any verification from an independent and credible expert in the relevant field to confirm that the conclusions it reached and the claims it makes are adequately supported by the relevant research. The research appears to relate to tests done on, inter alia, mice, flies, nematode worms, yeast, “sirtuins” and “eukaryotes”, and is highly technical in nature and language.
There is, however, nothing in the respondent’s submissions to suggest that this research findings are also applicable to humans and to the respondent’s product as available on the market and when consumed at the recommended dose.
While the Directorate notes the respondent’s invitation for the Directorate to specifically request supporting documentation for the independence, expertise and credibility of the various entities that the research emanated from, or alternatively express verification from an independent and credible expert as to the accuracy of the claims based on the relevant research, this is not appropriate.
In Solal Breast Protection Formula / R Jobson / 18707 (15 February 2012), the Directorate noted as follows, in relation the exact same request / invitation:
“Lastly, the Directorate notes the respondent’s request for the Directorate to advise whether it should ‘… engage the services of a person / entity which is independent, credible and an expert in the particular field to which the claims relate to confirm the accuracy of the claims’. This request was made in terms of Clause 184.108.40.206 of Section II.
It should be pointed out that in terms of Clause 4.1.5 (which includes Clauses 220.127.116.11 and 18.104.22.168), the Directorate is under no obligation to require an advertiser to obtain such verification. Entitlement and obligation are clearly not one and the same concept, and on a reasonable interpretation, this clause merely means that the Directorate has the option to request such verification if it so desires.
Given the shortcomings highlighted above, the Directorate saw no need to cause an additional delay by asking for additional documentation. The respondent has had ample dealings with the ASA, and is well versed in its Code and procedures. Similarly, the complaint at hand sufficiently detailed the grounds on which it is based and identified the applicable sections of the Code. As pointed out in the Solal Technologies / SASA [17484 (20 September 2011)] ruling, the Directorate requires independent and product-specific substantiation, which was not submitted by the respondent when it had the opportunity to do so”
Given that the respondent has not produced substantiation in accordance with the requirements of the Code, the Directorate has no option but to find that the claims disputed, as well as the name of the product, are currently unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
In light of the above finding, the respondent is instructed as follows:
withdraw the advertising and claims (including the product name) in their current format and medium;
the process to withdraw the advertising and claims (including the product name) must be actioned with immediate effect on receipt of the ruling;
the withdrawal of the advertising and claims (including the product name) must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
the advertising and claims (including the product name) may not be used again in its current format in future unless new substantiation has been submitted and accepted in a new Directorate ruling.
This aspect of the complaint is upheld.
Given the shortcomings in the respondent’s submissions, there is currently no need for the Directorate to evaluate whether or not the supporting documentation qualifies as confidential in terms of the Code. This issue will be resolved with the respondent once the ruling has been issued.
In view of the complainant’s reference to the respondent’s “repeated transgressions”, the complainant is hereby afforded ten working days to address the Directorate on whether or not sanctions are appropriate, and if so, which sanctions.
After this, the respondent will be afforded an equal opportunity, after which the Directorate will consider whether or not to impose sanctions on the respondent in accordance with the provisions of the Code.