Posted 11 December 2012
A consumer organisation laid a complaint with the ASA against the claims made in an advert for a Solal product claiming to benefit consumers suffering from diabetes ( “Take these 4 supplements to reduce fat, curb sugar cravings, lower cholesterol and decrease the risk of diabetes”).
The ASA ruled partly in favour of the complaint and dismissed certain aspects of the complaint.
However, this ruling, and similar to a number of previous ones, shows Solal attacking the messenger and not the message, their failure to learn from their past mistakes, and their abuse of scientific principles and cherry picking research in favour of their claims and dismissing or hiding the vast body of evidence that contradicts these.
|Solal Deadly Diabetes / ARHIA / 18303|
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty Ltd Respondent
06 Dec 2012
Professor Jobson, claiming to represent an organisation called ARHIA (Association for Responsible Health Information and Advertising) lodged a consumer complaint against the respondent’s advertisement appearing on its website www.solaltech.com.
The advertisement is headed “How to lose fat, reduce sugar cravings and help protect yourself from deadly diabetes” (respondent’s emphasis). Directly beneath this, it outlines the potential dangers of being overweight and not exercising or following a healthy diet, following which it states “Take these 4 supplements to reduce fat, curb sugar cravings, lower cholesterol and decrease the risk of diabetes”.
It promotes four of the respondent’s products, namely its “Pantethine-300TM”, “HCA with Chromium”, “Naturally SweetTM” and “Alpha Lipoic Acid (Dual R-form)”. For each product, it provides information on what it does, and what the recommended dosage is.
The complainant effectively raised two objections in relation to the actual advertisement that forms the subject of this ruling:
The relevant claims made for each individual product need scientific substantiation, and
There is no evidence that any of the individual products have been registered or approved by the Medicines Controls Council (MCC), rendering them in breach of Appendix F of the Code.
In addition to this, the complainant expanded his complaint in an attempt to include claims and information contained elsewhere on the respondent’s website where the individual products are promoted. Given that this ruling only pertains to the advertisement as summarised above, these objections will not form part of the current ruling.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant referred to the following sections of the Code, which were accordingly regarded as relevant by the Directorate:
• Section II, Clause 4.1 – Substantiation
• Appendix F – References to diseases in advertising
Attorneys Fluxmans, on behalf of the respondent, raised the following issues:
The Directorate is biased against the respondent,
The complaint is academic as the section that housed the advertisement has since been shut down,
The provisions of the Code relating to Misleading claims are not applicable to this complaint,
The ASA’s requirement for product-specific evidence is unreasonable and inaccurate,
The complainant in many instances attaches an unreasonable interpretation to the actual claims made. If the claims were to be considered realistically, within the context of the advertisement as a whole, the meaning would be clear and understandable. To this effect, it attached documentation it believes adequately substantiates the relevant claims made for each product. It also requested the Directorate to advise whether or not it wanted motivation for why the documentation should be regarded as having emanated from an independent and credible expert source.
In addition, it suggested that the Directorate should advise whether or not it wished for an independent and credible expert to verify the claims based on the documentary evidence relied on. It also requested confidentiality for its supporting documentation,
Arguments were also made in relation to the dispute in terms of Appendix F of the Code, but these are not summarised as the issue has since become moot (see explanation below).
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Before considering the complaint, some clarification is needed for the sake of proper context:
Since receiving the complaint and the response thereto, Appendix F of the Code has been completely removed from the ASA Code of Advertising Practice. As a result, any concerns that may have arisen in terms of this appendix are no longer valid.
The respondent’s accusations of bias on the part of the Directorate has been dealt with at length in other prior rulings (refer Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for more detail). As such, these allegations will not be entertained again here, save to say that the Directorate is satisfied that there is no merit to the respondent’s submissions.
In addition to this, in the ruling Vitaforce Skin Care / R Jobson / 19035 (23 March 2012), the Directorate dealt with the status of this complainant insofar as him being vexatious and attempting to force the ASA to regulate an industry that the Medicines Controls Council has to date failed to. These concerns were dismissed, and the respondent has not provided anything to convince the ASA to deviate from this approach.
The tenuous link the respondent insists on making between this complainant (and other activists in the industry) and the Treatment Action Campaign (the TAC) has also been discussed and rejected in prior matters (see Solal Technologies – Healthy Fast Foods / M Low / 16575 (15 December 2010) for one such example). The respondent’s reasoning in this regard has been rejected as flawed and without substance, and will not be entertained again in this ruling save to say that the Directorate is satisfied that there is nothing at hand to warrant regarding the complainant as a competitor complainant.
“Pantethine-300TM”; “HCA with Chromium” and “Alpha Lipoic Acid (Dual R-form)”
In each instance where the complainant identified claims that he wishes to dispute, he fails to explain on what basis (if any) he believes that the respondent does not hold the relevant substantiation.
For example, in relation to the “Pantethine-300TM” product, he states “… is claimed … to reduce fat and make exercise easier. These two claims must be substantiated”. He then proceeds to discuss claims and comments made on other webpages that are not properly part of the complaint at hand.
In relation to the “HCA with Chromium” he states “… is claimed to reduce the desire for sugar and other sweet things; boost energy levels; help prevent tiredness during the day …” and then proceeds to discuss claims and comments that appear on other, peripheral webpages, as opposed to those that appear in the advertisement against which the complaint is said to have been lodged.
In relation to “Alpha Lipoic Acid (Dual R-form)” he states “… has a heading ‘Decrease the risk of diabetes’. It claims to prevent high blood sugar; help prevent diabetes; reduces the damage that sugar causes the body; reduces the damage that being overweight causes the body … These claims all need scientific substantiation”. He then again proceeds to discuss claims and information contained on peripheral webpages that are not before the ASA at present.
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 unmotivated 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.
In relation to this product, he refers to an earlier Directorate ruling, before noting that the claim “Artificial sweeteners that contain aspartame aren’t a healthy alternative. A scientific report conducted in Italy in 2005 proves that aspartame increases the risk of cancer” is unsubstantiated. He explains that the study relied on appears to relate to tests done on rodents, and not humans.
In response, the respondent argued that animal studies are often done as a matter of preference in instances where toxicology of a substance needs to be determined, or where the tissue sampling that is required would ordinarily result in death, disability or undue pain.
It explained that the claim is not only supported by the Italian study referred to, but also by research summarised in other extracts that were supplied to the Directorate as Annexures “8A1” to “8A8”.
These Annexures all appear to relate to research done by various entities. Some of them relate to rats (which the complainant notes is problematic), while some appear to relate to the relationship between aspartame and headaches, or in one instance depression.
The claim as it currently stands implies that humans stand a higher chance to develop cancer when using sweeteners that contain aspartame. Given that the research relied on appears to be divergent in its potential applicability and potential verification for the claim, the Directorate is not in a position to determine whether or not the research submitted actually and adequately substantiates the claim.
The respondent has also not provided any verification from an independent and credible expert in the field to which the claim relates that confirms that the studies adequately and unequivocally verify the advertising claim.
Accordingly, the claim “Artificial sweeteners that contain aspartame aren’t a healthy alternative. A scientific report conducted in Italy in 2005 proves that aspartame increases the risk of cancer” is currently in breach of Clause 4.1 of Section II of the Code.
The respondent is therefore instructed to:
Withdraw the claim “Artificial sweeteners that contain aspartame aren’t a healthy alternative. A scientific report conducted in Italy in 2005 proves that aspartame increases the risk of cancer” from its advertising material,
Immediately give effect to this instruction for withdrawal upon receipt of this ruling,
Ensure that the claim is removed within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and
Refrain from using this claim again in future.
This portion of the complaint is upheld, and the respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires it to withdraw this claim from any and all media in which it may appear.