Solal loses ASA appeal on Omega 3

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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… 

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

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5775 

BACKGROUND

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”. 

COMPLAINT

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) 

RESPONSE

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. 

ASC Ruling

The committee dismissed the Appeal. The request of a refund of the lodgement fee is refused

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4 Responses to Solal loses ASA appeal on Omega 3

  1. Kevin 11 October, 2011 at 10:35 am #

    Thanks Harris. 
    The one thing that really irritated me about this whole appeal was that at no point do Solal address the actual issue.  They completely ignored the ball and continued to play the man, the referee and the rules of the game. 
    Until they were given my response to their appeal – they were still claiming that I was in the employ of the TAC and that the advert could never have appeared in the newspapre I claimed it did,  Funny how a copy of the newspaper itself dropped that claim – something you would think the legal sharks should have checked.  A week before the appeal was finally heard they changed their submission completely.  (Never overestimate the intelligence of a lawyer).
     
     

  2. Harris 11 October, 2011 at 11:15 am #

    @Kevin

    Firstly, congrats on this ruling, and secondly for persevering. This is a very significant ruling and we owe it to you.

    Readers only have to look at the litany of ASA rulings against Solal to see how they try to threaten or intimidate consumers who point out that their claims are unproven or misleading, in order to fully appreciate the type of company one is dealing with: commercial dealings at the expense of anything else. 

    They have threatened or tried to intimidate you, Nathan Geffen, and Marcus Low. Prof Roy Jobson, Dr Harris Steinman and Rene Smallberger (previous president of the Association of Dietetics of South Africa) have had defamation suits instituted.

    They have argued that these individuals have conspired when in fact most had not ever communicated but happened to have  made independent complaints to the ASA. They constantly target the messenger rather than the message. They continue to claim that I am sponsored by Big Pharma (or who knows who) in spite of the ASA having investigated this complaint three times previously following the same argument from other companies whose products I claimed were scams. The ASA have cleared me.

    This is a company that has been forced to amend or repeal most of the misleading claims that they had made previously, thanks to pressure from consumers: yet they have only once ventured to apologise (do not know if it was published). A stinking example is their anti-aging pill which was deconstructed, and the product claims completely demolished on CamCheck, yet they continue to market the product.   

  3. Roy 13 October, 2011 at 8:43 am #

    The ASA ruling contains this disturbing paragraph:
     
    "In addition to this, the respondent [Solal] argued that the complainant [Kevin Charleston] 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 http://www.quackdown.co.za (sic), who (sic) in turn vigorously promotes pharmaceutical products that compete with the respondent."
     
    I am intrigued to know what pharmaceutical products can be considered to compete with the respondent’s (Solal’s) products. TAC, as far as I know, has as its main focus ensuring that treatment of HIV/AIDS and related conditions (e.g. TB, opportunistic infections) is accessible to all those living in South Africa who need such treatment, but particularly the poorest members of our society who are not on medical aid schemes. I was unaware that the TAC sold any products itself, and even if it did that it would profit from such sales. The TAC website (http://www.tac.org.za) clearly states that it is a registered Section 21 (non-profit) company and has an NPO (non-profit organisation) number issued by the Department of Social Development.
     
    TAC does not even to the best of my knowledge, promote (vigorously or otherwise) the use of omega 3 & 6 – the products at issue in the ASA ruling – for HIV/AIDS. However Solal promotes omega 3 & 6 products as part of a "protocol" for “HIV/AIDS SUPPORT” (http://www.solaltech.com/protocols.htm). [This is accessible via a heading “Health and ailments” on Solal’s homepage http://www.solaltech.com.]
     
    Does Solal really believe (or have any evidence) that their protocol comprises “competitor products” with antiretrovirals and other pharmaceutical products in the treatment of HIV/AIDS? Does Solal really believe (have evidence) that their “HIV/AIDS SUPPORT protocol” has any helpful effects at all in persons living with HIV/AIDS? Solal’s description of Charleston/TAC as a competitor can only mean that their HIV/AIDS SUPPORT protocol is considered by themselves as a form of treatment similar to, if not equivalent to antiretrovirals.
     
    As Nathan Geffen has pointed out in his excellent and useful article on Quackdown “Don’t waste your money on immune boosters”, references to “immune boosters”, "immune support" and "immune system health" in the South African context are often seen as "code" for HIV/AIDS. http://www.quackdown.info/article/dont-waste-your-money-immune-boosters/. Is Solal also participating in this use of codified language to sell products which the public might perceive to be helpful for HIV/AIDS? [Please note that I have commented on Nathan’s blog by pointing out that Solal sells a product called “Immunity Immune System Support”. According to the logic presented by Solal to the ASA, this could render a complaint from me as "surreptitiously and deceptively" attempting to disguise a competitor complaint by the TAC as a consumer complaint – which is ludicrous.]
     
    The components of Solal’s HIV/AIDS SUPPORT “protocol” are:
     
    •DHEA (on prescription only)
    •Bitter Melon Extract
    •Olive Leaf Extract
    •Glutamine
    •Curcumin
    •Spirulina
    •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* or *Vegetarian Omega 3*)
     
    In considering this “protocol”:
     
    1. The webpage for DHEA states under “Pharmacological Action”: "DHEA and its analogues are capable of . . . depressing the replication of human immunodeficiency virus HIV-1 in lymphocytes" http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=5161.
     
    2. The label for Bitter Melon Extract states that it is an "antiviral" See: http://www.solaltech.com/newonepagers/BITTER%20MEMON%20EXTRACT.swf  
     

    3. The webpage for Olive Leaf extract http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=85 states that it contains an antioxidant oleuropein which has . . . anti-viral . . . effects. 

     
    4. Glutamine according to the Solal webpage http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=157 is an amino acid that protects the immune system. This is also stated on the label under "Indications & mechanism of action". http://www.solaltech.com/newonepagers/Glutamine.swf

     
    5. The label for curcumin (turmeric) states: "protects the immune system" http://www.solaltech.com/newonepagers/Curcumin.swf

     
    6. The webpage for spirulina http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=156 states that calcium spirulan, a glyconutrient found in spirulina was shown to selectively inhibit the replication of several enveloped viruses, including … HIV-1. 

     
    7. Advanced Cellular Anti-Aging Antioxidant http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=10  does not contain any reference to HIV, immune support or antiviral actions. See also: http://www.solaltech.com/products/nutriceuticals/adv_cell/ADVANCED%20CELLULAR%20ANTI-AGIN.swf
     
    8. Nor does Super Nutrient Antioxidant contain any references to HIV, immune support or antiviral actions http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=110.  See also: http://www.solaltech.com/newonepagers/SUPER%20NUTRIENT%20Anti-Oxidant.swf

     
    9. Nor does Aces Plus contain any references to HIV, immune support or antiviral actions http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=8 although its label has the remarkable claim: "Now with bioidentical (sic) vitamins" http://www.solaltech.com/newonepagers/Aces%20Plus-WEB.swf.  (An earlier label apparently dated 3 Sept 2009 is for a version of the product “without” bioidentical vitamins.) It is a concern that the concentrations of vitamin B1 stated on the new label, and those listed on the website are not the same!
     
    10. Probiotic Maximum Potency does not make any HIV/AIDS, immune support or antiviral claims. http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=5306
    However on accessing the "one pager" from the latter webpage the heading appears: "Your *gut* controls your immune system" (emphasis in original). See: http://www.solaltech.com/Probiotic%20Maximum%20Potency.pdf. Concerns have been expressed about the possibility of probiotics "infecting" people who have HIV/AIDS, although I have not seen any reports in the published literature. It should also be noted that *Lactobacillus acidophilus* is a Schedule 1 substance. 

     
    11. Krill Oil (Neptune NKO) Omega 3 http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=5312 states under "Indications: Krill Oil can be used in the following conditions: Important in maintaining . . . immune system health". This statement is repeated on the label under "About Krill Oil (Neptune NKO) Omega 3". http://www.solaltech.com/newonepagers/Krill%20Oil.swf

     
    12. An alternative option Fish Oil Extract Omega 3 http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=87 under the heading "Indications" states: "Fish Oil Extract Omega 3 aids in the following: Healthy immune system". A variation of this statement is repeated on the label: http://www.solaltech.com/newonepagers/FISH%20OIL%20EXT%20OMEGA3.swf

     
    13. Another option – Sol-Oil Omega 3 & 6 includes "Healthy immune system" under "Indications" http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=86 and on the label under "Indications and Mechanism of Action" states that "Omega 3&6 fatty acids are . . . esential for . . . immune system support." http://www.solaltech.com/newonepagers/SOL-OIL%20OMEGA3&6.swf

     
    14. You might however prefer Flaxseed Oil Omega 3 http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=150 which is "useful for . . . immune system . . . health". This statement is repeated as "For healthy . . . immune system function" on the label. http://www.solaltech.com/newonepagers/Flaxseed%20Oil%20Omega3.swf.  The formulation (compared to an apparently dated 31 July 2009 label) has been changed.  

    15. The final Solal omega oil option listed is Vegetarian Omega 3 http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=5301 which does not make any immune system or antiviral claims. The label however states "immune system health" http://www.solaltech.com/newonepagers/Vegetarian%20Omega%203.swf

     
    It is also of interest to note that health and medicinal claims associated with Solal products have changed over the years. Some of Solal's distributors / sellers still make claims for Solal products which one would assume were provided in the first place by Solal. No doubt Solal would no longer take responsibility for these.
     
    Curcumin Extract 95% 60x500mg Caps-Solal Technologies http://www.iheal.co.za/index.php?page=shop.product_details&flypage=flypage.tpl&product_id=521&category_id=21&option=com_virtuemart&Itemid=54
     
    Curcumin may be a valuable treatment for Acquired Immune Deficiency Syndrome (AIDS) patients:
    – Curcumin may inhibit the Integrase enzyme that catalyzes part of the process involved in the replication of the HIV virus.
    – Curcumin may interfere with the Long Terminal Repeat (LTR) sequence of the HIV virus.
    – Curcumin may increase the Helper T-Cell count of Acquired Immune Deficiency Syndrome (AIDS) patients – in one study the oral administration of 2,000 mg of Curcumin per day to AIDS patients for 20 weeks resulted in an increase in average Helper T-Cell counts from 6 – 615 cells per ml of blood to 283 – 1,467 cells per ml of blood. (no reference provided)
     
    Bitter Melon Extract (Solal) http://www.biogenesis-antiaging.com/product_info.php?cPath=13_64&products_id=203
     
    Bitter Melon 1% Extract – Inhibits the progression of some forms of Cancer, is beneficial for the treatment of (AIDS), increases the Helper T-Lymphocyte counts of AIDS patients, inhibits the initial HIV infection and the replication of HIV and cell to cell infection. (Brackets in original)
     
    * Bitter Melon may be beneficial for the treatment of Acquired Immune Deficiency Syndrome (AIDS):
    * Bitter Melon may increase the Helper TLymphocyte counts of AIDS patients.

    Bitter Melon may inhibit the initial HIV infection and may inhibit the replication of HIV and cell to cell infection (due to the AlphaMomorcharin, BetaMomorcharin and MAP30 content of Bitter Melon).
     
    Solal’s HIV/AIDS SUPPORT protocol (assuming that one has to buy and use all of the products listed as no other instructions are given, and assuming that a month’s supply is provided for each) costs R1558.00. Is this similar to what is being paid for first line antiretroviral therapy in the private sector? Is there any clinical evidence that this “protocol” is as effective as antiretrovirals in the management of HIV/AIDS?
     
    It is interesting to me that Solal’s product “Immunity Immune System Support” is not included in the protocol – but that “Immunity Immune System Support” itself contains olive leaf extract, bitter melon, spirulina, probiotics, and glutamine, amongst other substances. “Immunity Immune System Support” also contains N-acetylcysteine (Schedule 2 substance) and milk thistle [sylimarin] (Schedule 3 substance). “Immunity Immune System Support” costs R256 for 90 capsules. But as the recommended dose is 2 capsules 3 times a day, you’ll need two bottles for a month’s supply (R512). http://www.solaltech.com/new/shop/index.php?act=viewProd&productId=5259.
     
    NOTE: All webpages quoted were accessed between 11 and 12 October, 2011.
     
    The ASA appeal ruling “SolalTech Omega 3 & 6 / K Charleston / 16711” confirms that Appendix F remains in force. Appendix F states “Advertisements should not make or offer products, treatments or advice for any of the following illnesses or conditions unless recommendations accord with a full product registration by the Medicines Control Council. [. . .] The diseases to which no reference . . . may be made are: [. . .] AIDS (Acquired Immune Deficiency Syndrome)”
     
    But most importantly, isn't it about time the MCC called up these medicines that are making claims related to HIV/AIDS? Let's ensure that all these products / treatments / advice "accord with a full product registration by the MCC". Furthermore, it's time that Appendix F was updated to include mental health problems (e.g. major depression, bipolar affective disorder, generalised anxiety disorder) and other glaring gaps.

  4. Kevin 13 October, 2011 at 9:25 am #

    But most importantly, isn't it about time the MCC called up these medicines that are making claims related to HIV/AIDS? Let's ensure that all these products / treatments / advice "accord with a full product registration by the MCC
    Great Idea – any suggestions as to how to go about it?  I've not had much success at getting a list of what is and what isn't actually registered – frankly I have no clue about how to pursue that with the MCC. 
     

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