Posted 15 November 2012
Influenza is caused by viruses, and not bacteria, and antibiotics do not treat viruses. (One would have expected the doctors and pharmacists at Solal and the editorial advisory board of HI mag (a ‘masked’ Solal publication) to have a better knowledge of science)
The ASA ruled against Solal.
|Solal Flu Bacteris / R Jobson / 20511|
Ruling of the : ASA Directorate
In the matter between:
Professor Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
14 Nov 2012
Professor Jobson lodged a consumer complaint against the respondent’s print advertisement appearing in the 15th edition of the 2012 Health Intelligence Magazine.
The advertisement is headed “Flu bacteria is linked to chronic fatigue, allergies and immune system disorders”. It adds that “Recovery after flu may not be true ‘recovery’ at all; it could come with some long-term unintended health consequences”.
Directly below this, it states:
“Most people presume that upper respiratory tract infections during winter are always transient and trivial, and that a simple course of antibiotics will treat infections. This is not always the case. A class of bacteria known as mycoplasma, one of the most common causes of pneumonia chest infections, can migrate around the body and infect immune system cells, heart tissue and brain cells. Known as stealth pathogens they can live for years, undetected in your cells, and are associated with a number of chronic health problems, such as asthma, arthritis, heart damage, chronic fatigue syndrome and a weakened immune system.
Prevention is better than cure, it is important to protect your family’s immune system throughout the winter months so that infection doesn’t occur in the first place …”
Following this, it promotes the respondent’s “ImmunityTM” product for “Use throughout the winter months (starting around May) and “Natural Antibiotic & Antiviral/Flu Formula” for “Use if you feel a cold starting”.
It also features an image of a woman holding a pair of tissues at her face, with the following words superimposed on them:
• “HEART DAMAGE”
The complainant argued that the advertisement is inaccurate in suggesting that flu is caused by bacteria. Influenza is caused by viruses, and not bacteria, and antibiotics do not treat viruses. The complainant added that there are new classes of antiviral antibiotics available (such as Antiretroviral drugs), but these are not generally understood to be antibiotics. The complainant added that the common cold is also caused by a virus, and not by bacteria as suggested, and this virus is different from the type that causes influenza. It is therefore medically impossible to have substantiation for the claims that flu is caused by bacteria, or any of the related bacteria claims.
The complainant added that “Mycoplasma Pneumonia” as referred to in the advertisement, is usually associated with Pneumonia, which is a lower respiratory tract infection, and not an upper respiratory tract infection like flu. He added that there is no evidence available that the microorganisms known as “Mycoplasma” are able to “migrate around the body” causing a variety of symptoms.
The complainant took issue with the relevant ingredients and claims made for those ingredients for each of the two products promoted (“ImmunityTM” and “Natural Antibiotic & Antiviral/Flu Formula” arguing that there is no evidence in scientific literature that shows that these products, or even products with the exact same active and inactive ingredients have any preventative or curative effects in humans against flu or even flu-like symptoms.
The complainant added that the advertisement includes a “SPECIAL OFFER” for “FREE Double Vitamin CTM” which is claimed to “…[contain] a unique form of vitamin C that can be stored in the body, and which better penetrates into the interior of immune system cells where it is needed”. Substantiation is needed to show that this is true in human beings.
Finally, he took issue with the Solal “GMP” (Good Manufacturing Practice) seal at the bottom, which claims “Manufactured in a GMP (Good Manufacturing Practice) licensed facility, ensuring pure, safe and uncontaminated products of the highest quality. All our raw materials are tested for potency and purity. Our products do not contain any unhealthy of bulky fillers, but rather are filled to the brim with therapeutic doses of active nutrients and plant extracts”, arguing that this would require evidence that the facility is licensed (and by whom), a certificate of analysis to show that the products are uncontaminated, and a current GMP inspection report to show that the facility is up to date and passes inspection.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were considered relevant:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
Attorneys Fluxmans, on behalf of the respondent, did not address the Directorate despite being afforded the opportunity to do so. However, a copy of a letter addressed to the ASA’s attorneys was submitted. The Directorate will therefore treat this response as if it is intended to address the complaint.
Essentially, this letter informs the ASA’s attorneys that the respondent believes that the complainant is vexatious, and is usurping the ASA to act as surrogate regulator in the place of the Medicines Controls Council (MCC).
Other than this, it alleges that certain provisions contained in the Code are unconstitutional and should be struck out as void in the legal proceedings that the respondent has since instituted against the ASA.
It adds that the ASA’s rulings and procedures are not binding or enforceable on the respondent, as the respondent is neither a member of the ASA nor of the Health Products Association (HPA), who are an ASA member. It also complained that the ASA’s appeal procedures and fees are unenforceable, and will be held as such in the legal proceedings. The letter also motivates briefly (based on definitions obtained from a dictionary) why the references to bacteria causing flu are appropriate.
It concludes by advising that it is proceeding with legal action against the complainant for defamation, that the ASA is biased, and that “We have been instructed to place each and every further letter sent by your client to ours and/or us after the institution of the High Court application, including those attaching complaints before the High Court. Please advise your client accordingly”.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
As has become the norm for the respondent, it has not opted to take the Directorate into its confidence and supply the requisite evidence, but rather opted for an antagonistic and adversarial approach, accusing the ASA of improper conduct and illegal requirements. It is true that the respondent has instituted legal action against the ASA, and as such, all some issues will be properly ventilated in Court in due course.
The Directorate will, accordingly, limit its ruling to the complaint at hand, and will not comment on the peripheral issues that are sub judice. The only other relevant concerns relate to the status of the complainant and the Directorate’s jurisdiction.
Status of the complainant
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.
Accordingly, the Directorate is, at present, satisfied that the complainant is appropriately treated as a consumer complainant.
Jurisdiction of the ASA
The respondent is of the opinion that it is not a member of the ASA or any of its member, and is therefore not subject to the ASA’s authority.
The ASA, however, has a duty to its members to investigate complaints relating to advertising, whether it be advertising that the members have produced or advertising that the members may carry. (See for example the Final Appeal Committee (the FAC) decision in National Brands / Kwality Biscuits (Pty) Ltd.)
In Pretoria Civil Action & Another / City of Tshwane Metropolitan Municipality (15 November 2005), the FAC also emphasised the fact that the ASA is obliged to and entitled to rule on advertising complained of even if the advertiser does not concede to the ASA’s jurisdiction. It held:
“Even if the appellant had not appeared, after giving it an opportunity to do so, the ASA, at the request of a consumer, with due notice to the appellant could make a ruling binding on its members. The members in adhering to the ASA’s ruling would not be violating any protectable legal right of the appellant and would not commit an unlawful act. Nor would the ASA be doing so in making the ruling and nor would the consumer in asking for such a ruling. Vide Tothill vs. Gordon, 1930 WLD 99 and the ruling of this committee in National Brands Limited vs. Kwality Biscuits (Pty) Ltd”.
While the respondent may, or may not, have advertising agents that belong to a constituent member of the ASA, it may well choose to utilise a member of the ASA to carry its advertising (and in fact often does so). If this were to happen, such members, and indirectly, the respondent, would be bound by all relevant rulings. It is also clear that the ASA is required to consider all “valid” complaints. The complaint currently at issue complied with the provisions of the Code and is therefore regarded as valid.
The ASA wishes to point out that parties against whom complaints have been laid are invited by the ASA to participate in the adjudication of the complaints, by making submissions in regard thereto. The action that is taken by the ASA after making an adverse decision is to advise its media members not to accept advertising that is in breach of the Code to which the members subscribe.
The Directorate is therefore satisfied that it has jurisdiction over this matter, and that it has a contractual duty to its members to consider and rule on the issues raised.
In essence, the complainant argued that there is no evidence to support any of the claims made in the respondent’s advertising. He added and elaborated on why the respondent’s premise for making these claims are fundamentally flawed and untrue.
The respondent has not denied this, save to say that, in terms of the definition contained in the Merriam-Webster dictionary, “flu” is defined as “any of several virus diseases caused by bacteria or viruses and marked especially by respiratory or intestinal symptoms”. It added that “influenza” is also listed in this definition.
Clause 4.1 of Section II requires advertisers to hold proper substantiation for any and all claims that are capable of objective verification. It adds that such substantiation should emanate from, or at least be evaluated by an independent and credible expert in the field to which the claims relate. There is no dispute before the ASA that that respondent’s claims are capable of such independent verification. The respondent has, however, not submitted any such evidence.
Accordingly, the claims objected to by the complainant are currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
The respondent is therefore instructed to:
Withdraw this advertisement and/or the claims objected to by the complainant
Ensure that the process of withdrawal is effected immediately upon receipt of this ruling
Ensure that the process of withdrawal is completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide
Refrain from using this advertisement and/or the relevant claims again in future unless adequate substantiation has been submitted and accepted by the ASA in a new ruling.
The complaint is upheld.