Posted 13 December 2012
ASA ruling: “Given the requirements for clear and concise grounds in the Code, and in keeping with the approach followed in the Nature’s Choice ruling referred to above, the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand.”
|Solal “Most Important Chemical Reaction / R Jobson / 20395|
Ruling of the : ASA Directorate
In the matter between:
M Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
11 Dec 2012
Professor Jobson lodged a consumer complaint against a print advertisement for the respondent’s “UBIQUINOL Co-Q10’ and “ACETYL-L-CARNITINE & L-CARNITINE – OPTIMAL FORMS” products. The advertisement appeared in Edition 15 of the Health Intelligence Magazine during 2012.12.06
The advertisement is headed “The most important chemical reaction on the planet” and contains a graphic of a female model jumping in an acrobatic pose, as well as the following claims:
“BOOST THE BRAIN”,
“ENERGISE THE BODY”,
“ENHANCE PHYSICAL PERFORMANCE”,
“ENHANCE EXERCISE ABILITY”,
“Research has shown that these important nutrients can help for many low-energy states such as chronic fatigue, tiredness, physical and mental exhaustion”,
They have been shown to boost the brain, to help improve memory, and energise theo body, to enhance physical performance and exercise ability”,
These nergising nutrients also help to revitalise the heart, and keep it pumping strongly. Research shows that they are useful for helping to prevent heart failure, a disease caused by a weakened and tired heart, that is one of the most common forms of heart disease”.
The complainant argued that the graphic and the wording around it implies that the two products promoted can deliver the claimed benefits, such as improving memory, boosting the brain, energising the body, enhancing physical performance and enhancing exercise abilities. Substantiation is needed for such claims.
He added that the parameters of any purported efficacy needs to be clearly established, and that there should be evidence to show that the substances are actually absorbed intact, and reach the mitochondria in cells.
In relation to the references to the heart “pumping strongly”, the complainant argued that clarity needs to be given in the substantiation so as not to be confused with the “pumping strongly” associated with hypertension. Overall, the claims must be shown to be valid when the products are consumed by healthy people, as the advertisement appears to be aimed at healthy people and not sick people.
Finally, he added that the claim that heart failure is one of the most common forms of heart disease needs to be substantiated.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the Directorate considered Clause 4.1 of Section II to be applicable.
Fluxmans attorneys, on behalf of the respondent, raised six arguments, being that:
The ASA has usurped the functions and authority of the true medicine regulator (the Medicines Controls Council), and has no authority to regulate medicine advertising,
The ASA Code is neither binding nor enforceable on non-members of the ASA. This argument was also extended to relate to the imposition of appeal fees when non-members are aggrieved at an ASA ruling,
Various provisions contained in the Code are unconstitutional and will be struck out as void during the legal proceedings that the respondent has since instituted against the ASA,
The complainant is vexatious and / or contrived, as the advertising does not claim cellular penetration at mitochondria level as referred to by the complainant,
The respondent perceives the Directorate to be biased against it, and
The Directorate should suspend this investigation pending the outcome of High Court Proceedings instituted against it by the respondent.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
As the respondent pointed out, there is pending legal action between, inter alia, the respondent and the ASA, which concerns, inter alia, the points raised above insofar as the Directorate’s mandate, jurisdiction, and authority is concerned.
As such, there is no need for the Directorate to comment on these issues at this time.
In addition, the Directorate notes that it is currently faced with an incomplete complaint, and therefore does not need to address the other issues raised in response.
Clause 3 of the Procedural Guide explains what is required for a complaint to be “valid” and capable of proper investigation. It reads, inter alia, as follows:
“3.1.1 The complaint must be in writing.
3.1.2 The identity and contact details of the complainant(s) must be disclosed to the ASA. When lodging a consumer complaint, the identity or passport numbers of the complainant(s) must also be disclosed.
3.1.3 THE GROUNDS ON WHICH THE COMPLAINT IS BASED MUST BE CLEARLY STATED. If possible, the sections of this Code to which the complaint relates, should be identified. Should the complainant not be able to do so, the ASA will consider the complaint in terms of the sections it regards as relevant and deal with the complaint as if it had been lodged in terms of those sections (our emphasis).
3.1.4 The advertisement to which the complaint relates must, in the case of print media, be attached, if possible. In the case of other media, details of the advertiser, medium, and a description of the advertisement must be provided, and, if possible, the time and date of transmission (in regard to broadcast media) and nature and location (in regard to outdoor advertising).
3.1.5 The address, contact name and number of the offending advertiser or of the advertising practitioner acting on the advertiser’s behalf should be included, if possible.
3.1.6 Consumer complaints will be dealt with free of charge.
3.1.7 Competitor complaints will be subject to a non-refundable filing fee”
While the complainant has complained in writing, disclosed his contact details and ID number, and provided a copy of the offending advertising, he has not articulated the basis on which he believes that the respondent has contravened the provisions of Clause 4.1 of Section II of the Code. His complaint does not suggest that he has looked for, but was unable to find any evidence, or that the evidence available is unsound or inaccurate.
In fact, on closer reading, his “complaint” rather takes the form of advice, in that he correctly notes that the relevant efficacy claims should be substantiated, and expands on what type of substantiation is required. He does not, however, give the Directorate any reason to suspect that he has bothered to determine whether or not the respondent actually holds such substantiation.
In the absence of anything to suggest that the respondent does, the complaint at hand appears to merely contain a bald allegation without foundation.
In Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010), the Directorate was faced with a similar bland allegation. It ruled as follows:
“The complainant did not clarify why it thought the claims in the respondent’s website were unsubstantiated, misleading and dishonest. The complainant simply submitted that the ASA should call upon the respondent to submit substantiation for its claims and furnish reasons why its claims do not contravene Clauses 2 and 4.2.1 of Section II of the Code. This is akin to alleging that someone had committed theft and then asking the court, in the absence of evidence, to compel the accused to prove that he did not commit such a crime.
Not only does such an approach go against the principles of natural justice, but it effectively precludes the Directorate from investigating the matter and ruling because there are no grounds of objections”.
There is nothing to show that the complainant has a basis for alleging that the respondent has not complied with the provisions of the Code. It is merely an allegation.
Given the requirements for clear and concise grounds in the Code, and in keeping with the approach followed in the Nature’s Choice ruling referred to above, the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand.