Posted 11 October 2011
This ruling is a significant ruling. Solal has argued that the ASA has no jurisdiction over Appendix F of the ASA. First Judge Mervyn King of the ASA' Final Appeal Committee (FAC), and now the ASC, has thrown out the arguments stating unequivocally that they have full jurisdiction over this appendix.
"Clearly the main aim of the Appeal is to shoot down Appendix F. The Appellant advances 4 arguments in pursuit of its appeal . . . "
The ASA concludes:
"That matter was concluded by the Final Appeal Committee in April2011 and its views on Appendix F being part of the Code are clearly set out at paragraphs 7 and 8 of the ruling. There is no suggestion that the MCC has sought to have the Code or Appendix F amended. That would be the correct way for the MCC to approach the issue if it were so minded. In the absence of any amendment to the Code this Committee is entitled to assume the validity of Appendix F and consequently apply it as part of the contractual terms between the parties (they are not indirectly bound)."
"The Appellant contends that its right to sell is restricted which is not correct. It is free to sell its products as it sees fit but it is not free to offer advice in its advertisements that contravene Appendix F."
Reading this document is depressing (for it illustrates Solal's attitude):
"In addition to this, the respondent argued that the complainant has “surreptitiously and deceptively” attempted to disguise a competitor complaint by the Treatment Action Campaign (The TAC) as a consumer complaint. This argument was based on the fact that the complainant had contributed to, or commented on a blog run by the TAC on www.quackdown.co.za, who in turn vigorously promotes pharmaceutical products that compete with the respondent."
Implicit in this statement is that Solal argues that the TAC promotes pharmaceutical products that compete with the respondent. This implies anti-retrovirals. Was Solal blatantly lying in order to convince the ASA that Kevin Charleston is a competitor and therefore should pay for the complaint (the complaint will remain valid) or is Solal considering re-introducing products that make therapeutic claims?
"This appears to be no more than a poor attempt at sidestepping the requirements of the Code (refer Clause 3.3 of the Procedural Guide, which requires all advertising to be current and / or have been placed within 90 days of complaining)."
"The argument put forward by the respondent was effectively based on its perception that the complainant was complaining on behalf of the TAC, who in turn have a commercial motive."
"In addition to this, the respondent questioned the ASA’s ability to restrict its constitutional right to free commercial speech."
But I love the ASA's response:
"In weighing these two interests up, the right of the appellant to freedom of expression must give way to its contractual obligation not to advertise in a manner which would be likely to mislead and the public interest that advertisers should not promote either their products or competitions in a manner likely to mislead or to abuse a consumer’s credulity."
Solal lost the appeal. The ruling follows…
Solal lost the appeal. The ruling follows…
SolalTech Omega 3 & 6 / K Charleston / 16711 (ASC)
SolalTech Omega 3 & 6 / K Charleston / 16711 (ASC)
Ruling of the : Advertising Standards Committee In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
07 Oct 2011
Mr Charleston lodged a consumer complaint against Solal’s newspaper advertisement that appeared in the Business Day during October 2010.
The advertisement is headed “Why omegas are so important and how to choose the safest one”. It also contains, inter alia, the following claims:
“… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk of heart attacks, strokes, arthritis, diabetes and depression”.
“The information presented above is the informed opinion of SOLAL Technologies after review of scientific research and medical literature”.
“PRESCRIBED BY DOCTORS – RECOMMENDED BY PHARMACISTS”.
The complainant essentially submitted that these claims are in breach of Appendix A of the Code, more specifically the provisions dealing with the topic of vitamins and minerals, as well as Appendix F of the Code, due to the fact that it suggests a deficiency in omega 3 increases a risk for diseases listed in this appendix.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE The complainant identified the following clauses of the Code as relevant:
Clause 5.1 of Appendix A (Impressions of professional advice or support) – [relates to an earlier version of the Code, which has since been amended]
Clause 8.21.1 of Appendix A (Unacceptable claims: Particular products, treatments, symptoms and conditions – Vitamins and minerals)
Appendix F (References to diseases in advertising)
This Respondent argued that the complaint is “defective and invalid’ because the contact details and identity or passport number of the complainant were not included in the complaint received. Either the complainant omitted this information (in contravention of the procedural requirements of the Code), or the ASA deliberately deleted this information, something that is not provided for in the Code. As such, the ASA was precluded from investigating this complaint.
It added that the material complained of does not constitute “advertising” as defined in the Code. The argument appeared to be that the copy of the advertisement attached to the complaint could not be the one published in the Business Day as alleged.
Based on this, the respondent alleged that the advertisement was more than likely sourced from its website archives, where old advertisements are kept.
This alone means that the ASA is precluded from investigating these advertisements because they are no longer current as required by the Code (Refer Clause 3.3 of the Procedural Guide).
In addition to this, the respondent argued that the complainant has “surreptitiously and deceptively” attempted to disguise a competitor complaint by the Treatment Action Campaign (The TAC) as a consumer complaint. This argument was based on the fact that the complainant had contributed to, or commented on a blog run by the TAC on www.quackdown.co.za, who in turn vigorously promotes pharmaceutical products that compete with the respondent. It alleged that the complainant was attempting to avoid paying the required fee for competitor complaints.
Finally, in dealing with the merits, it argued that the ASA has no jurisdiction to enforce the requirements of Appendix A and Appendix F.
ASA DIRECTORATE RULING
At the outset, the Directorate rejected the respondent’s assumption that the advertisement was not, in fact, sourced from the actual newspaper in which they appeared. It specifically noted that the respondent had not denied that this exact advertisement appeared in the newspaper.
Even if, for the sake of argument, one were to assume that the advertisement was sourced from the respondent’s website, the mere presence of a disclaimer as alluded to by the respondent, makes no material difference to this.
The Directorate also noted that there is currently a notice reading “All the adverts appearing below have been published and are older than 90 days”.
This appears to be no more than a poor attempt at sidestepping the requirements of the Code (refer Clause 3.3 of the Procedural Guide, which requires all advertising to be current and / or have been placed within 90 days of complaining). Clearly the respondent’s website intends to promote these products for commercial gain. By keeping these advertisements on its website, it ensures that they remain “current”, as people are continuously able to access them, consider them, and arguably be influenced by them to buy the relevant product. This falls squarely within the definition of an “advertisement” contained in the Code, and clearly also meets the requirement for being “current” as intended in the Code.
In light of the above, the Directorate rejected the respondent’s argument that the advertisement does not fall within the jurisdiction of the ASA.
Secondly, the respondent’s convoluted argument over the bona fides of the complainant holds no water.
The argument put forward by the respondent was effectively based on its perception that the complainant was complaining on behalf of the TAC, who in turn have a commercial motive.
Firstly, there was nothing before the Directorate to suggest that the complainant was acting for, or on behalf of the TAC.
Likewise here, the respondent did not submitted a shred of evidence that showed that the complainant has any commercial ties with the TAC, was instructed by the TAC, or was attempting to protect any commercial interest of the TAC. It was also worth noting that the ruling in the matter Solal Technologies Healthy Fast Foods / M Low / 16575 (15 December 2010) dealt with the very same issue, only in relation to a person employed by the TAC. Here too, this baseless allegation was rejected.
In subsequent correspondence, the respondent submitted an email detailing discussions between one of its directors, Mr Brent Murphy, and a TAC representative, Mr Nathan Geffen. The copy submitted contains a highlighted section reading as follows:
“… Solal has litigation pending against Harris Steinman and Roy Jobson or while a representative of TAC, Marcus Low, has complaints pending against Solal at the ASA”.
No explanation was given as to how this was relevant or how it applied to the complainant in this matter. As such, the Directorate attached no weight to this.
Accordingly, the Directorate rejected the respondent’s argument that the complaint was a disguised competitor complaint.
The next concern related to the omission of the complainant’s ID or passport number and his contact details. Here too, the Directorate noted, with concern, that the respondent effectively raised the same issue in Solal Technologies Healthy Fast Foods / M Low / 16575 (15 December 2010).
It is unclear why the non-disclosure of this information is problematic for the respondent. Similarly, it is unclear why the respondent is again raising a superfluous issue of this nature. The decision to hide personal contact details from advertisers is of an operational nature, and is justifiable, given the potential for harassment in any dispute before the ASA. It also deserves mention that the respondent has, in previous matters (refer Solal Technologies Healthy Fast Foods referred to above for example) indicated that it does not hesitate to take legal action against complainants. This at least supports the operational decision to withhold contact information about complainants, because victimisation and intimidation would likely stifle future complaints.
For the above reasons, the respondent’s objection on this basis was rejected, and the Directorate was satisfied that the complaint met the relevant criteria set out in the Procedural Guide, and was therefore a “valid” complaint.
Lastly, the Directorate turned to the merits of the complaint before it.
The only portions of the Code cited as relevant by the complainant, were Appendix A and Appendix F.
In the period between lodging the complaint, and the Directorate actually being able to rule on the merits, the ASA adopted a new, and completely different Appendix A. Aside from the fact that this appendix expressly stipulates that it excludes complementary medicines such as the respondent’s, it also no longer contains the specific provisions highlighted by the complainant (Clauses 5.1 and 8.21.1).
The Directorate therefore can no longer consider the complaint in terms of Appendix A. However, the provisions of Appendix F are still applicable.
In this regard the respondent again submitted a tortuous argument about the Directorate’s jurisdiction, or rather lack thereof, in relation to this appendix, with specific reference to specific laws of the country, and how they may impact on the ASA’s ability to rule on advertising for these products. The essential premise is that the Code incorrectly identifies the “owner” of Appendix F as the Medicines Control Council of the Department of Health, and creates an expectation that the ASA was entitled to administer this appendix on behalf of the Department of Health.
In Christ Embassy Church/ N Geffen / 14821 (28 April 2011), the Final Appeal Committee had to consider an argument very similar to that of the respondent. It held, inter alia, as follows:
“Clause 4 of the preface to the Code provides that: ‘This Code is supplemented by individual Codes which are determined by the various member organizations or negotiated with governmental institutions. These individual Codes are reflected in the appendices to the Code. All such Codes conform to the general principles laid down by this Code and differ only in detail where the individual needs are to be met.” The Code further provides that: “The individual Codes contained in the appendices are administered on behalf of the owner identified at the top of the first page of each appendix.’
The owner at the top of Appendix F is said to be the Medicines Control Council (MCC).
Ms Jansen argued that the contractual provisions of Appendix F need to be interpreted and applied in accordance with the provisions of the Medicines and Related Substances Control Act, 101 of 1965. She submitted that a conflicting interpretation would mean that the MCC negotiated and agreed to provisions in Appendix F, ultra vires its statutory mandate and such agreement could not contractually impose requirements that legally cannot be met. She further argued that section 18 C of the Medicines Amendment Act had not been complied with, as there had been no regulation relating to the marketing of medicines.
We do not agree with this submission. Assuming for the purposes of this matter that there is no regulation, and Appendix F is ultra vires, in the context of this matter these two issues are legally irrelevant. The appendix became a term of the contract between interested parties to the Code being a supplement to the Code.
That which is contained in Appendix F is therefore part of the Code and there has to be compliance with these terms by interested parties such as the parties in casu.
We have concluded that the Code is clear as supplemented by Appendix F. One may not advertise a product or offer treatment or advice for heart trouble unless this accords with the full product registration by the MCC. It was common cause between the parties that this requirement was not met”.
By this reasoning alone, the respondent’s argument failed, and the Directorate was satisfied that the provisions of Appendix F were applicable, and could be enforced. The respondent had not made a compelling argument as to why this ruling by the Final Appeal Committee was not applicable, and the Directorate was not, at this time, of a mind to differ with this view.
In addition to this, the respondent questioned the ASA’s ability to restrict its constitutional right to free commercial speech.
The Directorate noted that the ASA Appeal Committee ruled as follows in AIG Life / R Booysen (31 May 2006):
“In terms of Section 36 (1) of the Constitution the right of freedom of expression may be limited to the extent that it is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.
“The nature and extent of the limitation in casu is an international standard to prevent advertising that is not ‘legal, decent, honest and truthful’. The ASA Code follows the international standard in regard to misleading advertising. Vide the International Advertising Code as published by the International Chamber of Commerce and adopted by the European Advertising Association. The purpose of the limitation contained in 4.2.1 of the Code is that members of the public (consumers) should not be misled in regard to any form of advertising. As in other countries, the advertising industry is self regulated and as such the ASA carries out a public function. The appellant through its association with the ASA is bound by contract not to breach the Code. There is, in the view of the committee, no less restrictive means to achieve the public purpose of ensuring that marketers do not mislead consumers.
“In order to ensure that the requirements of Section 36 (1) have been fulfilled so as to limit the right of freedom of expression, the different interests of the parties must be balanced and weighed up. For the appellant there is the freedom to express its direct marketing campaign while the consumer requires that advertising should not be such that it is likely to mislead. Public policy is in line with this requirement. In weighing these two interests up, the right of the appellant to freedom of expression must give way to its contractual obligation not to advertise in a manner which would be likely to mislead and the public interest that advertisers should not promote either their products or competitions in a manner likely to mislead or to abuse a consumer’s credulity.”
The Final Appeal Committee’s reasoning in relation to Clause 4.2.1 of Section II (Misleading claims) is similarly applicable to Appendix F. In short, the respondent’s right to freedom of expression must give way to its contractual obligation not to advertise in a manner that contravenes the provisions of the Code, and the public interest that advertisers should not promote their products by using such claims.
The conditions listed in the respondent’s advertisement are “…heart attacks, strokes, arthritis, diabetes and depression”. All of these, with the exception of “strokes” and “depression”, are listed in Appendix F.
The advertising claims “… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk of heart attacks, strokes, arthritis, diabetes and depression”, and then promotes the respondent’s product, indirectly implying that it contains the essential concentration of omega 3 to avoid such illnesses, or at best lower one’s predisposition for such illnesses. This is reinforced by the heading “Why omegas are so important and how to choose the safest one”.
Clearly this amounts to offering products and advice for the conditions such as arthritis, diabetes and heart attacks (listed as “Heart troubles, cardiac symptoms” in Appendix F).
The respondent had not commented on the merits of the complaint, and moreover had not submitted any evidence that its products accord with full registration and recommendation by the MCC as is required by this appendix.
In light of this, the respondent’s advertisement is in contravention of Appendix F.
Given the above the Directorate ruled that:
The advertisement and relevant claims must be withdrawn;
The process to withdraw the advertisement and claims must be actioned with immediate effect on receipt of this ruling;
The withdrawal of the advertisement and claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
The advertisement and relevant claims may not be used again in their current format.
The complaint was partly upheld.
Grounds for Appeal
The Appellant filed it Appeal against the Directorates Ruling on 11 July 2011.The Appellant takes issue with the Directorate not considering its submissions or dismissing them based only on its reliance on the ruling of the Final Appeal Committee in the Embassy matter referred to above. The grounds for appeal are set out clearly in the Appellants Heads of Argument submitted at the Appeal hearing and need not be repeated here. The Respondent filed its response on 22 July and did not respond to the “legal” issues raised by the Appellant but reiterated his objections to the advertisement as a contravention of Appendix F
The Appeal hearing
Messrs B Murphy, C Levin and H Snoyman appeared on behalf of the Appellant. . There was no appearance from the Respondent.
The Appellant’s representations followed the Heads of Argument
Clearly the main aim of the Appeal is to shoot down Appendix F.
The Appellant advances 4 arguments in pursuit of its appeal, which are dealt with below, following the numbering in the Appellants heads;
The ASA has no power to adopt or enforce Appendix F The argument is directed at the adoption by the Board of Directors of the ASA and /or its members of Appendix F.
The crisp question for the Committee’s decision on this issue is whether it has the power or authority to pronounce on the actions of the Board or its members.
The Committee is constituted to consider complaints in terms of the Code of Advertising practice and that is its raison d’etre. It is therefore entitled to assume that the published code is enforceable until there is a determination that it is not. It is not for this Committee to make such a determination.
The terms of the contract between the ASA, its members and those indirectly bound The Appellant sets out what it believes to be the correct contractual relationship.
That relationship has been stated on a number of occasions by the Final Appeal Committee and as the Embassy Church ruling is relevant to this appeal we quote from that ruling:.
“The Code constitutes a contract between the Appellant and the Respondent. The agreement between them is that neither would advertise in a manner which breaches the provisions of that agreement, namely the Code.”
The Appellant seeks to distinguish the present matter from the Embassy Church matter on the basis that the ASA has no valid mandate to enforce Appendix F. The one basis is the argument set out in 2 above which has been dealt with. The other is the letter from the Department of Health dated 7 March 2011 which is an expression of an opinion as to the status of the ASA’s relationship with the MCC as well as Appendix F and cannot be construed as a revocation of Appendix F, or as evidence as contended for by the Appellant (parol or otherwise) A similar opinion was given by the same MCC representative in the Embassy Church matter.
That matter was concluded by the Final Appeal Committee in April 2011 and its views on Appendix F being part of the Code are clearly set out at paragraphs 7 and 8 of the ruling. There is no suggestion that the MCC has sought to have the Code or Appendix F amended. That would be the correct way for the MCC to approach the issue if it were so minded. In the absence of any amendment to the Code this Committee is entitled to assume the validity of Appendix F and consequently apply it as part of the contractual terms between the parties(.they are not indirectly bound).
Appendix F is unconstitutional
The ambit of Appendix F is set out in the first paragraph and this is the contractual term applicable to the parties. The term of the contract is that a party, in the context of the current complaint, should not offer advice on illnesses listed in Appendix F unless recommendations accord with full product registration by the MCC. That is not an unreasonable restriction as to allow unrestricted advice to consumers would not be justifiable.
The Appellant contends that its right to sell is restricted which is not correct. It is free to sell its products as it sees fit but it is not free to offer advice in its advertisements that contravene Appendix F. Like the MCC, as set out above, the Appellant is free to make submissions on amending the Code including Appendix F through the appropriate channels if it believes the Appendix serves no purpose in a self regulated environment.
A proper interpretation of Appendix F
The Appellant deals with the merits of the disputed advertisement in one page of its 18 page submission and contends that its advertisement is not advice for the diseases or prevention of the diseases.
In judging an advertisement the purpose and intent of the advertisement must be considered. Clearly the intent of the advertisement is to persuade consumers to buy Omega 3 products offered by the Appellant. The question then is why would someone buy Omega 3 and the answer as per the advertisement is that increased Omega 3 intake would reduce the risk of heart attacks, strokes, arthritis, diabetes and depression. Couching the proposition as a deficiency that can increase the risk still delivers the same message and the purpose of the advertisement is clear, namely to offer advice to the consumer.
The committee dismissed the Appeal. The request of a refund of the lodgement fee is refused