Solal “Naturally High” – ASA complaint not accepted

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Posted 19 November 2012

A consumer laid two complaints with the ASA against the claims for this product. The ASA ruled in favour of the complainant in that complaint but not in this one, stating: “Given the requirements for clear and concise grounds in the Code . . .  the Directorate has to decline to rule on the merits of this matter at this time, based on the complaint at hand”. 

Solal Tech “Naturally High” / K Charelston / 19897
Ruling of the : ASA Directorate
In the matter between:
Kevin Charelston Complainant(s)/Appellant(s)
Sola Technologies (PTY) Ltd Respondent

 

15 Nov 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6321

Mr Charleston lodged a consumer complaint against the respondent’s print advertisement promoting, inter alia, its “NATURALLY HIGHTM” product. The advertisement appeared in the Cape Times during February 2012.

The advertisement contains the heading “Feeling down?” and states that “Naturally HighTM contains5-HTP (extracted from the Griffonia plant, not synthetically produced, since synthetic 5-HTP can be contaminated with chemicals. It also contains herbal extracts to boost serotonin, the neurotransmitter than [sic] produces good mood.

COMPLAINT
The complainant submitted that “The advert offers no product-specific evidence for the claims made. The claims made have little scientific basis and require substantiation …”

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) to be applicable.

RESPONSE
Fluxmans attorneys, on behalf of the respondent, did not address the merits of the matter, but took procedural issues and raised interpretive issues. Essentially, it raised five arguments, being that:

The complainant did not have locus standi to complain,

The complainant is vexatious;

The complainant is actually a competitor complainant disguised as a consumer complainant,

The Directorate should recuse itself because 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.

While it is noted that the majority of the respondent’s concerns have, in fact, already been considered and rejected in prior ASA rulings (refer Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for example where the perceived bias, as well as the status of the complainant were addressed), 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.

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. He simply states that “The advertising offers no evidence for the claims made by the specific product”, and that the claims require substantiation.

In the absence of any compelling reason why the complainant expects the respondent to include its evidence in the actual advertising, the complainant is merely “pointing out the obvious” when stating that no substantiation is made available in the advertisement. Clause 4.1 of Section II does require advertisers to hold adequate substantiation for their claims, but there is no requirement to provide such substantiation in the actual advertising.

While the Directorate notes that the complainant argues that the “… claims have little scientific basis …” he does not explain or motivate this. In effect, the complainant has not explained WHY he believes that the respondent has contravened the provisions of Clause 4.1 of Section II (which requires independent substantiation), he has simply alleged that the respondent has contravened the provisions of the Code.

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 unmotivated 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.

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