Posted 20 November 2012
A consumer took issue in a complaint to the ASA with the individual claims made for each individual component of this product, taking issue with the validity of these claims. In addition, whether or not there was any evidence to support the respondent’s inclusion of each individual component in its “HIV / AIDS SUPPORT” protocol was argued and effectively, the concerns to whether or not there was appropriate evidence that the respondent’s entire “HIV / AIDS SUPPORT” regime is able to deliver on expectations.
The ASA ruled in favour of Solal stating that in their opinion, that: ‘the hypothetical “reasonable person” would likely interpret this advertising communication to mean that this particular protocol is meant to offer “support” to people living with HIV / AIDS. There is nothing before the Directorate to show that people would interpret this to imply that the relevant protocol would treat HIV / AIDS’ ” and that “[T]his effectively means that the basis on which the complaint was lodged is incorrect, thereby nullifying the complaint.”
| Solal HIV/AIDS Protocol Booklet / R Jobson / 18889|
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
14 Nov 2012
Professor Jobson lodged a consumer complaint against the respondent’s “HIV / AIDS SUPPORT” protocol as promoted on its website www.solaltech.com, as part of its “Product Information and Health Solutions Guide”. The protocol lists the following of Solal’s products as components:
“Krill Oil (Neptune – NKO®)
Omega 3 (or Fish Oil Extract
Omega 3 or Sol-Oil Omega 3
& 6 of Flaxseed Oil Omega 3
or Vegetarian Omega 3TM)
Bioidentical Hormones *
Advanced CellularTM Anti-Aging
Antioxidant (or Super Nutrient
Antioxidant or ACES PlusTM)
Probiotic – Maximum Potency
*Contact The Compounding Pharmacy of South Africa”.
The complainant submitted a convoluted argument drawing from information contained elsewhere in the booklet, or on the respondent’s own website in relation to the individual components of this “HIV / AIDS SUPPORT” protocol. In essence, what the complainant appears to have done, is investigated the individual claims made for each individual component, taking issue with the validity of these claims.
In addition, he also appears to question whether or not there is any evidence to support the respondent’s inclusion of each individual component in its “HIV / AIDS SUPPORT” protocol. Effectively, the concerns relate to whether or not there is appropriate evidence that the respondent’s entire “HIV / AIDS SUPPORT” regime is able to deliver on expectations.
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
• Appendix F – References to diseases in advertising
Fluxmans attorneys, on behalf of the respondent, argued that:
The Directorate is biased against the respondent, meaning that the Directorate should recuse itself from this and any other Solal matters;
The advertising expresses an opinion on a subject of controversy, and as such, the provisions of Clause 4.2.1 of Section II are not relevant or applicable to this matter;
The advertisement as a whole does not imply that these products treat or cure AIDS, but merely that they can “support” someone with HIV / AIDS;
The complainant’s expectation of substantiation is unreasonable and goes beyond what is actually communicated in the advertising at issue. The respondent also submitted what it believes are confidential documents in support of its efficacy claims for each of the individual components and / ingredients;
The ASA is not the Registrar of Medicines and has no place determining the efficacy of the respondent’s products. The respondent also argued that its products are generic medicines, which do not require product-specific evidence;
The provisions of Appendix F of the Code are unconstitutional and ultra vires the ASA’s own Articles of Association, and cannot be enforced on Solal or any other advertisers.
The complainant is not a consumer complainant, but rather a competitor complainant as contemplated in Clause 4.12 of Section I of the Code. The respondent also suggested that the complainant is vexatious and abusing the ASA processes.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Before getting to the merits of the matter, the Directorate has to clarify a few things, which impact directly on this ruling:
The Directorate’s jurisdiction is limited to the actual content of the advertising complained about. It cannot include features or concerns that arise from other media or other advertising when deliberating on one particular advertisement. The complainant took issue with various aspects and claims made by the respondent in other advertisements that promote the individual ingredients that make up this “HIV / AIDS SUPPORT” bundle. These claims and comments, however, are not properly before the Directorate, and the Directorate cannot consider these objections at this time, as this particular complaint relates only to the actual advertisement as described at the top of this ruling. The Directorate will therefore not entertain the peripheral complaints / claims at this time.
Following on this, the Directorate notes the respondent’s arguments that the ASA is not the Registrar of Medicines, and cannot evaluate the safety or efficacy of the respondent’s products. To some extent, this is correct, as the ASA has never purported to be the Registrar or to perform the duties of the Registrar.
However, where efficacy claims are made in advertising, they clearly fall within the jurisdiction of the ASA. This is predominantly because Clause 4.1 of Section II requires the ASA to determine whether or not an advertiser holds adequate substantiation for any direct or implied claims that are capable of objective verification. In determining whether or not an advertiser holds such substantiation the Directorate is merely fulfilling its role as self-regulatory authority, established by the industry to serve not only the industry but consumers at large.
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.
The argument that this advertisement falls within the parameters of controversial advertising are of no material significance. Clause 2.4 of Section I stipulates that any advertising that expresses an opinion on a matter which is the subject of controversy, and that controversy falls within areas of public policy and practice, such opinions are not subject to the provisions of the Code dealing with misleading claims.
Assuming for the sake of argument that the advertising can be regarded as expressing an opinion on a subject of controversy (something which the Directorate is not convinced of at this stage), the dispute at hand still relates primarily to whether or not the respondent holds substantiation for the implication that this regime or protocol is beneficial to HIV / AIDS patients. It also stands to reason that if the claims are substantiated, they cannot be regarded as misleading. In any event, the provisions of Clause 4.1 of Section II (Substantiation) are not affected by Clause 2.4 of Section I, meaning that this argument is of no consequence to the ultimate decision. The Directorate therefore has no reason to determine whether or not the advertising at issue qualifies as “controversial” at this time.
With the aforesaid clarified, the Directorate really has to determine only the following:
What is the likely takeout a hypothetical “reasonable person” would have of the advertising disputed?
Does this likely takeout match the intended communication, or does it in some way fall foul of the relevant provisions of the Code?
When deliberating on matters, the Directorate has to adopt an objective approach, and consider the overall communication of the advertising.
The complainant appears to interpret this advertising to imply that the entire regime of products (termed a “protocol”) would treat HIV / AIDS. In each instance where he discusses the information obtained on each of the individual components of this “protocol” he states:
– “The claims need clinical and scientific substantiation to show that the product can effectively be used as part of the TREATMENT of HIV / AIDS, and that it is effective as a component of the HIV / AIDS SUPPORT protocol …” (our emphasis).
In a few instances (for Glutamine, Advanced Cellular Anti-Aging Antioxidant, Super Nutrient Antioxidant, and Aces Plus), he argues that “The claim that the product is effective as a component of the HIV / AIDS SUPPORT protocol … must be substantiated scientifically and clinically”.
It should be noted that the protocol at issue is titled “HIV / AIDS SUPPORT” (our emphasis). It is not entirely clear why or how the complainant interprets this to imply “treatment”. There are no claims made other than the heading “HIV / AIDS SUPPORT” and it only features a list of products offered by the respondent. The complainant has not motivated at all why a reasonable person would interpret this to imply that the protocol promoted would actually treat HIV / AIDS. While he has alleged that many of these products are claimed (in other advertising or informational material) to support or protect the immune system, he has not explained the leap in logic in reaching a conclusion that this translates into the treatment of HIV / AIDS.
Considering the current example of this Product Information and Health Solutions Guide on the respondent’s website (Edition 9), it would appear that the respondent labels its protocols as a “SUPPORT” in various instances, whereas some are labelled “TO REDUCE CRAVING”, “TO HELP PREVENT” or “TO BOOST” to name a few examples.
This would suggest that the protocols are not necessarily intended to imply treatment as the complainant suggested. Clearly, “support” and “treat” are not synonymous, and it would be improper to overlook the clear reference to “SUPPORT” in this instance.
Given that the complainant has not motivated why he believes the advertising implies treatment, as well as the fact that the advertising is devoid of any efficacy claims that would suggest “treatment”, and that it clearly labels the protocol as a “SUPPORT” protocol, the Directorate does not agree with the complainant that the respondent needs to provide substantiation “… to show that the product can effectively be used as part of the TREATMENT of HIV / AIDS …” as argued by the complainant.
In light of the above explanation, the Directorate is satisfied that the hypothetical “reasonable person” would likely interpret this advertising communication to mean that this particular protocol is meant to offer “support” to people living with HIV / AIDS. There is nothing before the Directorate to show that people would interpret this to imply that the relevant protocol would treat HIV / AIDS.
This effectively means that the basis on which the complaint was lodged is incorrect, thereby nullifying the complaint.
Accordingly, the complainant’s insistence on substantiation for the treatment of HIV / AIDS is improper, and the Directorate cannot rule that the advertising at issue is in contravention of Clause 4.1 of Section II for the reasons advanced in the complaint.
The Directorate therefore had no reason to even consider the documentation submitted by the respondent in support of the efficacy of its individual products.
The complaint is dismissed.