Posted 16 November 2012
A consumer complaint was laid with the ASA against Solal’s internet advertising promoting “Naturally High”. The product claims that it is “… a blend of safe, herbal and nutritional extracts that naturally elevate the levels of three energising and mood-enhancing brain neuro-transmitters …” and that this product “… enhances the brain’s ability to cope with stress and has an anti-anxiety effect by calming the central nervous system” and that “Unlike prescription anti-depressants, Naturally High doesn’t artificially and dangerously prevent the breakdown of neurotransmitters, which can lead to agitation, sleep disturbances, reduced sex-drive, suicidal thoughts, and aggression”.
The complainant submitted that the respondent’s website provides no evidence for these claims, and that they have little scientific basis.
The ASA ruled partly in favour of the complainant, i.e., they were not offered any proof that the product could support the claims being made for it.
NB: this consumer laid two complaints with the ASA against the claims for this product. The ASA ruled in favour of this complainant but not in the other, 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 Charleston / 19898|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
13 Nov 2012
Mr Charleston lodged a consumer complaint against Solal’s internet advertising appearing on www.solaltech.com/new/shop/index.php?act=viewProd&ProdId=79. The advertising promotes the respondent’s “Naturally High” product under the auspices that it is “… a blend of safe, herbal and nutritional extracts that naturally elevate the levels of three energising and mood-enhancing brain neuro-transmitters …”
It further states that this product “… enhances the brain’s ability to cope with stress and has an anti-anxiety effect by calming the central nervous system” and that “Unlike prescription anti-depressants, Naturally High doesn’t artificially and dangerously prevent the breakdown of neurotransmitters, which can lead to agitation, sleep disturbances, reduced sex-drive, suicidal thoughts, and aggression”.
The complainant submitted that the respondent’s website provides no evidence for these claims, and that they have little scientific basis. He added that the claims require substantiation as called for in terms of Clause 4.1 of Section II of the Code, as read with the definition of “Scientific substantiation” as contained in Clause 4.25 of Section I.
In addition, the comparison to “prescription anti-depressants” is disparaging to competing products that are only available through consultation with a doctor. The references to sleep disturbances, reduced sex-drive, suicidal thoughts and aggression effectively imply (without any evidence) that properly prescribed medical products are dangerous, which could in turn lead to consumers ignoring medical prescriptions.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:
• Section II, Clause 4.1 (Substantiation)
• Section II, Clause 6 (Disparagement)
• Section II, Clause 7 (Comparative advertising)
Fluxmans Attorneys, on behalf of the respondent, submitted a lengthy response, effectively raising five “concerns”. The response did not, however, address the merits of the matter.
The concerns raised were as follows:
The complainant has not “adduced any evidence that he or anyone else has been harmed or may potentially be harmed by the advertisement”, which means he lacks locus standi to complain,
The complaint is vexatious, and the complainant is abusing the ASA process to further his vendetta against the respondent and complementary medicines in general,
The Directorate should recuse itself given what the respondent perceives as a bias against the respondent,
The complaint should be regarded as a competitor complaint in accordance with the provisions of the Code,
The Directorate should suspend its investigation pending the determination of High Court Proceedings that were (at the time of the response) still to be instituted against the ASA.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Aside from disputing the veracity of the advertising claims, the complainant also took issue with the fact that this advertisement could be regarded as disparaging to competitor anti-depressant products, as well as the negative repercussions this may have for patients who have been prescribed such medication. He specifically referred to the provisions of Clause 6 of Section II (Disparagement) and Clause 7 of Section II (Comparative advertising).
Clause 4.14 of Section I defines “consumer complaints” as “… complaints lodged by members of the public or entities or organisations REGARDING CONSUMER RELATED MATTERS, concerning compliance with the Code by an advertisement or advertiser” (our emphasis).
Clearly, the question of whether or not the respondent’s advertising is disparaging of other competitor products is not a “consumer related matter”, and the complainant is therefore not entitled to pursue such concerns when lodging a consumer complaint. Traditionally speaking the ASA does not allow consumers to lodge complaints that affect the commercial interests of competing entities.
If any competing company wished to take action against the respondent’s claims on a similar basis it would be their prerogative. However, the Directorate will not entertain the complaint insofar as it relates to the provisions of Clauses 6 and 7 of Section II of the Code (Disparagement and Competitor advertising).
Status of the complainant
The respondent has, on numerous occasions, argued that the complainant was vexatious and/or complaining in bad faith and/or abusing the ASA and its procedures.
This issue was dealt with extensively in Solal Stress Damage Control / K Charleston / 19746 (22 March 2012), in which the Directorate rejected such arguments. The respondent has not provided any new or significant arguments why this approach should change, and has not appealed the above-mentioned ruling.
The Directorate therefore again rejects the arguments raised in number 2) and 4) as summarised in the response above.
Perceived bias against the respondent
Here too, the respondent is effectively raising the same arguments and concerns that were considered and rejected in the Solal Stress Damage Control ruling issued in March 2012. It has not, however, appealed the reasoning and decision in this ruling, and the Directorate sees no reason to deviate from its approach.
The Directorate therefore again rejects the argument raised in number 3) above.
Locus standi of the complainant
Effectively, the respondent’s argument here is that the complainant has not alleged, or adduced evidence that he, or other members of the public stand to be harmed as a result of this advertisement. As a result, the respondent believes that the Directorate is precluded from investigating this complaint. The Directorate does not share the respondent’s view.
Clause 1 of Section I of the Code states, inter alia, as follows:
“All advertisements should be legal, decent, honest and truthful … All advertisements should be prepared with a sense of responsibility to the consumer … No advertisement should bring advertising into disrepute or reduce confidence in advertising as a service to the industry and to the public”.
Clause 4.1 of Section II stipulates that advertisers must hold substantiation for any and all direct or implied claims that are capable of objective substantiation. Furthermore, it stipulates that such substantiation should be obtained “before advertising is published”.
It would appear from a reasonable reading of the complaint that the complainant attempted to find evidence for the claims made by the respondent on its website, but was unable to. The complainant specifically notes that “The website offers no evidence for these product-specific claims”. He continues by stating “The claims have little scientific basis and require substantiation …”
The only reasonable inference to be drawn from this is that the complainant is alleging that the respondent has no evidence for its efficacy claims. Clearly, in the context of the preamble of the Code (Clause 1 of Section I), claims that are dishonest or misleading are also likely to bring advertising into disrepute and/or reduce consumer confidence in advertising as a service to the public. This alone satisfies the question of locus standi.
There is nothing in the Code that prohibits consumers (or competitors) from lodging a complaint if they have not necessarily been “caught” by false advertising. The Procedural Guide specifically lists the criteria for lodging a complaint. Provided that a complaint meets the criteria stipulated here (which this complaint does), the Directorate has no reason to ignore a valid complaint.
Aside from the above, the Directorate does not agree with the respondent that there is nothing in the complaint that would suggest a potential harm to others. The complainant specifically argues that the advertising is disparaging to other competitor pharmaceutical products, and could potentially lead to consumers foregoing their prescribed medical treatment for the respondent’s products at a risk. While the complainant is not permitted to lodge disputes of this nature (see comments above under “Preliminary clarification”), it nonetheless negates the argument that there is no allegation that the advertising is potentially harmful.
Accordingly, the Directorate rejects the issues raised by the respondent in point 1) above.
Pending High Court proceedings
It would appear that the respondent expects the Directorate to suspend its investigation in this matter until the High Court proceedings which it (at the time of responding) had not yet instituted.
Its argument appears to simply be that it intends to (and has since) instituted legal action against the ASA, and as such the Directorate should not proceed to investigate a valid and current complaint.
It should be noted that at this time, there is no order of the Court preventing the Directorate from exercising its mandate and investigating any and all valid complaints brought to its attention in accordance with the provisions of the Code. Similarly, there is nothing in the Code that would require the Directorate to stop an investigation in the absence of any compelling reason to do so.
The ASA has a contractual duty to investigate all valid complaints and inform its members of the outcome of such investigations. The complainant in this instance has articulated his reasons for objecting, and the respondent has been afforded an appropriate opportunity to reply. As such, there is currently nothing preventing the Directorate from finalising the matter. The mere fact that the respondent would prefer for the Directorate to do so is not sufficient to halt valid ASA proceedings.
Accordingly, the Directorate will not suspend its investigation in this matter pending the outcome of the High Court Proceedings instituted by the respondent.
The only remaining question is whether or not the respondent holds adequate substantiation for its efficacy claims that are capable of objective verification as required by the Code. The complainant contented that it does not.
The advertising at issue expressly states that the respondent’s product will:
“… naturally elevate the levels of three energising and mood-enhancing brain neuro-transmitters … enhances the brain’s ability to cope with stress and has an anti-anxiety effect by calming the central nervous system”.
The complainant specifically took issue with the fact that he was unable to find any evidence that this product would “elevate the mood-enhancing neuro-transmitters” or that it would “enhance the capability of the brain to cope with stress [and] calms the nervous system”.
These claims appear to be capable of independent and objective verification as required by Clause 4.1 of Section II of the Code. The respondent has, however, not provided any evidence for these claims.
Accordingly, the claim that this product “… naturally elevate[s] the levels of three energising and mood-enhancing brain neuro-transmitters … [and that it] enhances the brain’s ability to cope with stress and has an anti-anxiety effect by calming the central nervous system” are therefore unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
The respondent is therefore instructed to:
Withdraw these claims from its advertising;
Ensure that the process of withdrawal is auctioned with immediate effect upon receipt of this ruling;
Ensure that the relevant claims are completely withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide;
Refrain from using these claims again in future unless new substantiation has been submitted to the ASA, and a new ruling has been issued accepting the claims as substantiated.
The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide.
The complaint is partially upheld.