Posted 05 March 2013
A consumer laid a complaint with the ASA against this product: “. . . investigated the individual claims made for each individual component, taking issue with the validity of these claims.”
However the ASA concluded that “the complaint at hand cannot currently be properly considered and ruled on” and “. . . 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”.
|Solal HIV/AIDS Protocol Website / R Jobson / 18888|
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Sola Technologies (Pty) ltd Respondent
28 Feb 2013
Professor Jobson lodged a consumer complaint against the respondent’s “HIV / AIDS SUPPORT” protocol as promoted on its website www.solaltech.com. The protocol lists the following of Solal’s products as components:
DHEA (on prescription only)
Bitter Melon Extract
Olive Leaf Extract
Advanced Cellular™ Anti-Aging Antioxidant (or Super Nutrient Antioxidant or ACES Plus™)
Probiotic – Maximum Potency
Krill Oil (Neptune – NKO®) Omega 3 (or Fish Oil Extract Omega 3 or Sol-Oil Omega 3 & 6 or Flaxseed Oil Omega 3)”.
The complainant submitted a convoluted argument drawing from information contained elsewhere 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.
His arguments for each individual component tend to end in a statement to the effect that “These statements [referring to those made for the components on other pages than the one objected to] 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 …”
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, initially argued that the complaint is too vague and it would be unfair to expect it to respond to the complaint. It then submitted a further response, arguing 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 respondent also submitted what it believes are confidential documents in support of its efficacy claims for each of the individual components and / ingredients.
Subsequent to this, it submitted a third response, arguing that:
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.
Once the Directorate advised that the documents submitted would not be regarded as confidential, it declined the opportunity to withdraw these documents, and added that the complaint relates to its website, which the ASA has conceded does not fall under its jurisdiction. As such, the complaint should be dismissed, and the complainant and/or the ASA should pay the respondent’s costs incurred as a result of having to respond to this complaint.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
As correctly noted by the respondent in its first response, the complaint is vague and unmotivated. While the complainant has gone through the trouble of researching the relevant claims made for each and every individual component of the respondent’s HIV/AIDS PROTOCOL, he has not motivated WHY this advertisement is in breach of the Code.
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.
The Directorate therefore does not deem it necessary to deal with other issues raised by the respondent at this time.