The South African Sugar Association (“SASA”) lodged a complaint with the ASA against a print advertisement for Solal's Naturally Sweet product, which appeared, inter alia, in The Star of 28 September 2009. The advertisement was headed, “Too much sugar or artificial sweeteners can cause cancer.”
On 01 Dec 2009, the ASA ruled against Solal effectively not allowing them to make these claims any longer.
Solal appealed and on the 17 May 2010, the ASA accepting the substantiation of the claims by Mr Rael Koping (a dietitian), found in favour of Solal allowing the claims to be used. I am informed that SASA will be requesting arbitration.
The appeal ruling in favour of Solal follows:
Ruling of the : ASA Directorate
In the matter between:
South African Suagar Association Complainant(s)/Appellant(s)
Solal Technologies Fine Pharmaceuticals (Pty) Ltd Respondent
17 May 2010
In terms of Clause 4.1.7 of Section II, Stefan Vos Marketing Regulation Advisers, on behalf of the respondent, submitted new substantiation in support of the claims. The substantiation consisted of a letter from Mr Rael Koping, a Registered Dietician from Cape Town.
According to Mr Koping’s letter, he graduated with a BSc. (Med) Hons in Dietetics from the University of Cape Town in 1993, and he has been practicing in the field since. He has regularly participated in various public fora including radio and print media, and in translating scientific findings into publically consumable information. He has consulted for two entrepreneurs wishing to bring products to market, and until about seven years ago he owned a small sport supplement manufacturing company. In his own product lines he used both nutritive and non-nutritive sweeteners. He is not currently active in that market.
The respondent submitted that Mr Koping therefore qualifies as an independent and credible expert in the field of nutrition and food science.
The respondent undertook not to ignore a reasonable request for co-operation to adhere to rulings imposed by the ASA, and requested that the Ad-Alert be withdrawn.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the new substantiation, Clause 4.1 of Section II was considered relevant.
The Directorate is mindful, however, that although Clause 4.2.1 of Section II (Misleading claims) was not considered previously, the original ruling stated, “…in the event of the Directorate receiving new substantiation, or the matter going on appeal, this clause may well be open for consideration again.”
Should the new substantiation be accepted, the Directorate will be obliged to consider whether Clause 4.2.1 of Section II is contravened.
COMPLAINANT’S RESPONSE TO THE NEW SUBSTANTIATION
In accordance with procedure, the complainant was afforded an opportunity to comment on the independence, credibility and expertise of Mr Koping.
It submitted, in essence, that it does not consider Mr Koping to be independent as he only evaluated papers that were provided by the respondent and in which he cannot make a decision to provide to the complainant. Proprietary evidence should not be used to make claims to the public.
It submitted that Mr Koping is not a credible expert in evaluating science based nutrition information in relation to nutrition claims. If he had done a more credible and independent investigation of the scientific evidence, he would have found that there are well conducted and respected reviews and studies published in reputable journals refuting the respondent’s claims. These are far superior in quality compared to the information provided by the respondent to Mr Koping.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
Clause 4.1.7 of Section II provides that the Directorate may consider new substantiation submitted after a ruling has been made by the ASA rejecting substantiation or upholding a complaint based on substantiation.
Clause 4.1.4 of Section II states, inter alia, “Documentary evidence, other that survey data, shall emanate from or be evaluated by a person / entity, which is independent, credible and an expert in the particular field to which the claims relate and be acceptable to the ASA.”
The respondent submitted a letter from Mr Rael Koping in support of the relevant claims. It appears that he has between 16 and 17 years of experience in the field of dietetics. He therefore appears, ex facie, to be an expert in the field to which the claims relate.
The complainant questioned Mr Koping’s expertise and credibility because, it submitted, he did not review a large body of available contradictory evidence. The Directorate does not agree, however, that this affects Mr Koping’s credibility or his expertise. What the complainant has done, effectively, is to indicate that there is a difference of opinion on the subject of whether sugar can have the effects claimed by the respondent. This is something that is likely to be addressed more properly through the process of arbitration.
With regard to Mr Koping’s independence, the Directorate does not agree that the fact that he only considered evidence provided by the respondent necessarily affects his independence. Clause 4.1.4 of Section II states that evidence must emanate from or be evaluated by an independent and credible expert. This is clearly stated in the alternative. Evidence emanating from the advertiser is therefore acceptable, provided that it is also evaluated by an independent and credible expert in the relevant field.
The Directorate therefore accepts Mr Koping as a prima facie independent and credible expert in the field to which the claims relate.
The Directorate notes that Mr Koping’s letter concludes that the respondent “has provided adequate scientific literature to substantiate the… claims”.
In light of this, the respondent’s claims have now been substantiated and are no longer in breach of Clause 4.1 of Section II.
Clause 4.2.1 of Section II states, inter alia, that advertisements should not contain any statement or visual presentation which is likely to mislead the consumer.
The original complaint in this matter was based on the allegation that the respondent’s claims are “incorrect”. Given that the claims have now been substantiated, there is nothing currently before the Directorate to show that the claims are nonetheless likely to mislead the consumer.
Accordingly, the claims are not in breach of Clause 4.2.1 of Section II.
In light of the above, the respondent may continue to use the claims quoted on page 1 of this ruling in relation to its Naturally Sweet product.
In light of the above findings and the respondent’s undertaking, the Directorate will withdraw the Ad-Alert issued on 3 December 2009.