Posted 15 November 2012
A complainant was submitted to the ASA that an advertisement creates an impression that the product “BurnoutTM” will boost energy, fight exhaustion and fatigue and enhance brain function. The consumer explained that “The advert offers no product-specific evidence for the claims made. The claims have little scientific evidence and require substantiation …”
The ASA ruled that: ” Given the requirements for clear and concise grounds in the Code, and in keeping with the approach followed in . . ” a previous ASA ruling, ” . . the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand.”
|Solal Tech “Burnout” / K Charleston / 19900|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
14 Nov 2012
Mr Charleston lodged a consumer complaint against the respondent’s print advertisement appearing in the Cape Times during February 2012.
The advertisement is headed “Whatever your health needs, SOLAL has a solution”, and promotes five products, one being “BurnoutTM” which is recommended for people “Lacking in energy”. It explains that the product “contains herbal extracts such as Panax ginseng and liquorice extract that boost energy, and fight exhaustion and fatigue”. It adds that “Panax ginseng also helps enhance brain function” (respondent’s emphasis).
The complainant submitted that the advertisement creates an impression that the product “BurnoutTM” will boost energy, fight exhaustion and fatigue and enhance brain function. He explains that “The advert offers no product-specific evidence for the claims made. The claims have little scientific evidence and require substantiation …”
He added that the respondent has been overtly aggressive in threatening complainants, who complain about their false advertising. As such, sanctions are appropriate to prevent further abuse.
In a separate letter, the complainant also took issue with the respondent’s product label for this product, which states that it is recommended “FOR EXHAUSTION AND ADRENAL BURNOUT”. The label adds that the product “Stimulates adrenal function” and that its “Synergistic dual action formula: stimulates adrenal function and reduces adrenal hormone breakdown”. There is also mention that the product, inter alia, “… works by boosting low levels of cortisol”. Here too the complainant stated that the “… advertising offers no evidence for the claims made by the specific product. The claims made have little scientific basis and require substantiation ..”
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the Directorate considered Clause 4.1 of Section II to be applicable.
Fluxmans attorneys, on behalf of the respondent, did not address the merits of the matter, but took procedural issues and raised interpretive issues. Essentially, it raised four arguments, being that:
The complainant did not have locus standi to complain,
The complainant is vexatious and / or a competitor complaint disguised as a consumer complaint,
The Directorate should recuse itself because the respondent perceives the Directorate to be biased against it, and
The Directorate should suspend this investigation pending the outcome of High Court Proceedings instituted against it by the respondent.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
While it is noted that the majority of the respondent’s concerns have, in fact, already been considered and rejected in prior ASA rulings (refer Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for example where the perceived bias, as well as the status of the complainant were addressed), the Directorate notes that it is currently faced with an incomplete complaint, and therefore does not need to address the other issues raised in response.
Clause 3 of the Procedural Guide explains what is required for a complaint to be “valid” and capable of proper investigation. It reads, inter alia, as follows:
“3.1.1 The complaint must be in writing.
3.1.2 The identity and contact details of the complainant(s) must be disclosed to the ASA. When lodging a consumer complaint, the identity or passport numbers of the complainant(s) must also be disclosed.
3.1.3 The grounds on which the complaint is based must be clearly stated. If possible, the sections of this Code to which the complaint relates, should be identified. Should the complainant not be able to do so, the ASA will consider the complaint in terms of the sections it regards as relevant and deal with the complaint as if it had been lodged in terms of those sections.
3.1.4 The advertisement to which the complaint relates must, in the case of print media, be attached, if possible. In the case of other media, details of the advertiser, medium, and a description of the advertisement must be provided, and, if possible, the time and date of transmission (in regard to broadcast media) and nature and location (in regard to outdoor advertising).
3.1.5 The address, contact name and number of the offending advertiser or of the advertising practitioner acting on the advertiser’s behalf should be included, if possible.
3.1.6 Consumer complaints will be dealt with free of charge.
3.1.7 Competitor complaints will be subject to a non-refundable filing fee”
While the complainant has complained in writing, disclosed his contact details and ID number, and provided a copy of the offending advertising, he has not articulated the basis on which he believes that the respondent has contravened the provisions of Clause 4.1 of Section II of the Code.
His complaint does not suggest that he has looked for, but was unable to find any evidence, or that he the evidence available is unsound or inaccurate. He simply states that “The advert offers no product-specific evidence for the claims made”, and that the claims require substantiation. In the absence of any compelling reason why the complainant expects the respondent to include its evidence in the actual advertising, the complainant is merely “pointing out the obvious” when stating that no substantiation is available in the advertisements.
Clause 4.1 of Section II does require advertisers to hold adequate substantiation for their claims, but there is no requirement to provide such substantiation in the actual advertising.
While the Directorate notes that the complainant argues that the “… claims have little scientific basis …” he does not explain or motivate this. In effect, the complainant has not explained WHY he believes that the respondent has contravened the provisions of Clause 4.1 of Section II (which requires independent substantiation), he has simply alleged that the respondent has contravened the provisions of the Code.
In Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010), the Directorate was faced with a similar bland allegation. It ruled as follows:
“The complainant did not clarify why it thought the claims in the respondent’s website were unsubstantiated, misleading and dishonest. The complainant simply submitted that the ASA should call upon the respondent to submit substantiation for its claims and furnish reasons why its claims do not contravene Clauses 2 and 4.2.1 of Section II of the Code. This is akin to alleging that someone had committed theft and then asking the court, in the absence of evidence, to compel the accused to prove that he did not commit such a crime.
Not only does such an approach go against the principles of natural justice, but it effectively precludes the Directorate from investigating the matter and ruling because there are no grounds of objections”.
There is nothing to show that the complainant has a basis for alleging that the respondent has not complied with the provisions of the Code. It is merely an allegation.
Given the requirements for clear and concise grounds in the Code, and in keeping with the approach followed in the Nature’s Choice ruling referred to above, the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand.