Solal “Couch Potato Dead Potato” – ASA ruling

Posted 13 December 2012

ASA ruling: “Given the above, the complaint at hand cannot currently be properly considered and ruled on.”

Solal “Couch Potato Dead Potato” / R Jobson / 20394
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

11 Dec 2012

Professor Jobson lodged a consumer complaint against the respondent’s print advertisement appearing in the Health Intelligence Magazine, Edition 15, during 2012.

The advertisement is headed “COUCH potato DEAD potato” and contains a subheading that “A lounging-around lifestyle contributes towards diabetes and cancer, making you fat, and giving you a heart attack”.

It then continues to state that supplementation with the respondent’s products, in conjunction with exercise, are the “SOLUTIONS” to this problem. The advertising also contains information about the benefits of each of the four products promoted, being:

• Alpha Lipoic Acid (Dual R-Form)
• D-Chiro-Inositol.
• Pantethine-300.
• Chromium Polinycotinate.

The complainant specifically quoted the claim “These 4 supplements are ideally placed to help decrease chances of metabolic syndrome, diabetes and the accumulation of stomach fat”, arguing that it “requires substantiation … in the form of evidence that the 4 substances … taken together (as implied in the advertisement) do in fact decrease chances of [developing] metabolic syndrome and the accumulation of stomach fat”. He then explains what type of substantiation he would regard as appropriate.

In addition, he quoted specific claims as made for each of the four supplements, arguing that these require substantiation as well, and that the substantiation should relate to the “Solal version” of this supplement.

In light of the complaint the Directorate considered Clause 4.1 of Section II (Substantiation) as relevant.

Fluxmans attorneys, on behalf of the respondent, did not address the merits of the matter, and merely argued that it has approached the High Court of South Africa with regard to its complaints relating to the ASA. It elaborated on the grounds on which it believes that the ASA has no jurisdiction over disputes of this nature, and contended that the Directorate is biased against it, and that the complainant is not a bona fide consumer.

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

While the respondent has correctly noted that there is pending legal action between it and the ASA, there is nothing that currently prevents the ASA from receiving and adjudicating on complaints relating to the respondent’s advertising.

Be that as it may, it is noted that the complainant has not properly lodged his complaint, and has not articulated the grounds on which he believes the claims referred to by him are unsubstantiated.

Clause 3 of the Procedural Guide clarifies the requirements that have to be met in order for a complaint to be regarded as “valid”. Clause 3.1.3 in particular, states that “The grounds on which the complaint is based must be clearly stated”.

The complainant has not provided any explanation as to what reasons he may have for believing that the respondent would not be able to substantiate its claims. While he explained what kind of substantiation he would regard as sufficient, he has not suggested, for example, that he has searched and was unable to find any evidence for these claims, or that the evidence available was inadequate for some reason or another.

As such, “The grounds on which the complaint is based …” are not currently “… clearly stated” and it would be improper for the Directorate to expect a respondent to answer to a complaint when the complaint does not provide sufficient motivation to render it more than merely a suggestion or bald allegation (see Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010) for more detailed explanation).

Given the above, the complaint at hand cannot currently be properly considered and ruled on.

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