Solal Fish Oil & Vitamins D – ASA ruling

Posted 13 December 2012

ASA ruling: “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.”

Solal Fish Oil & Vitamins D / K Charleston / 19148
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

11 Dec 2012

Mr Charleston lodged a consumer complaint against the respondent’s print advertisement appearing in the Cape Times during November 2011.

The advertisement promotes the respondent’s “FISH OIL EXTRACT OMEGA 3 and VITAMIN D3”. Below a heading “Vitamin D3” it states, inter alia, that “Low levels of Vitamin D has been associated with an increase in some forms of cancer, as well as heart attacks and strokes. SOLAL Technologies supplies the effective D3 form of vitamin D, not the D2 form found in many supplements …”.

The complainant described the advertisement and quoted the above claim, before stating

“The advert offers no evidence for these claims made by the product. The claims have little scientific evidence and require substantiation …”

He added that the reference to cancer, heart disease and arthritis are in contravention of Appendix F.

In light of the clauses identified by the complainant 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 is “a disgruntled cabal whose purpose is to harm the respondent’s business”. In the same breath it argued that the complainant, does not have locus standi to complain;

The Directorate should recuse itself because the respondent perceives the Directorate to be biased against it, and

The Directorate’s approach in incisting on product-specific substantiation is inappropriate as its products are generic and require no such substantiation.

Arguments were also made about the legitimacy and legality of Appendix F of the Code, and the respondent submitted a report that appears to have been compiled by it, containing summaries and extracts from “PubMed”. It argued that these references, which were obtained online should be regarded as confidential.

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

At the outset, the Directorate needs to point out that Appendix F has since been entirely removed from the Code, and therefore no longer applies. The Directorate therefore will not consider the complaints raised in terms of this appendix. It should also be noted that the word “arthritis” does not appear in the advertisement as incorrectly suggested by the complainant.

In addition to this, it must be 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). These issues will similarly not be addressed again in this ruling.

Finally, with regard to the respondent’s submission that the documentation it obtained from PubMed should be regarded as confidential, the Directorate notes that this submission is no longer of material significance for the reasons set out below, and therefore the Directorate does not at present have to consider whether or not it agrees with the respondent on the issue of confidentiality.

The Directorate is currently faced with an incomplete complaint. 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 (our emphasis).

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 evidence for these 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 done so.

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.

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