ASA ruling: Solal Naturally Sweet product

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 is headed, “Too much sugar or artificial sweeteners can cause cancer.” It also states, inter alia, “For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet). More recently, research conducted in 2008 and 2009 has shown that sugar excess can suppress your immune system and increase the risk of developing cancer.” The latter sentence is referenced to two articles.

How did the ASA rule?

"Accordingly, the respondent’s claims are unsubstantiated and therefore in contravention of Clause 4.1 of Section II."

 

Note:

  1. Solal appealed this ruling and the ASA found in favour of Solal
  2. I disagree with the ASA's ruling in Solal's favour

Read more . . . 

Solal Technoliogies / SASA / 13733
Ruling of the : ASA Directorate
In the matter between:
South African Sugar Association Complainant(s)/Appellant(s)
Solal Technologies Fine Pharmaceuticals (Pty) Ltd Respondent

01 Dec 2009

The South African Sugar Association (“SASA”) lodged a complaint against a print advertisement for Solal Technologies Fine Pharmaceuticals’ (“Solal”) Naturally Sweet product, which appeared, inter alia, in The Star of 28 September 2009.

The advertisement is headed, “Too much sugar or artificial sweeteners can cause cancer.” It also states, inter alia, “For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet). More recently, research conducted in 2008 and 2009 has shown that sugar excess can suppress your immune system and increase the risk of developing cancer.” The latter sentence is referenced to two articles.

COMPLAINT
The complainant submitted, inter alia, that the person reading the advertisement will be misled to believe that sugar is harmful to health. The information on sugar in the advertisement is incorrect as there is no evidence that sugar causes weight gain, diabetes or sugar-shock.

International bodies such as the World Health Organization (WHO) and the Food and Agricultural Organization of the United Nations (FAO) have reviewed the effect of the consumption of sugar on health. These bodies agree that there is no evidence of a direct involvement of sugar in the etiology of lifestyle diseases such as diabetes, hypertension and cardiovascular disease.

Furthermore, eating sugar does not cause obesity. The only way to gain weight is to eat more calories than your body is able to use. Results from scientific studies show that weight loss will occur just as readily when some sugar is included in a weight reducing diet. Some researchers have even suggested that allowing a little sugar on a weight reducing diet or a low fat diet may make it more palatable and easier to follow. Overemphasising the avoidance of sugar may be counterproductive in preventing obesity.

In addition, eating sugar does not cause diabetes. A study has shown that a diet containing as much as 25% sugar (more than double the recommended intake) was not linked to the development of diabetes. In fact, the American Diabetes Association recommendations allow the use of up to 50g of sugar in a calorically controlled eating plan.

Eating sugar does not cause sugar-shock. Sugar has a moderate glycaemic index and has the same effect on blood sugar as that of bread and potatoes.

The complainant submitted that the referenced articles used in the advertisement contain results that could not find any significant relationship between sugar and the risk of getting cancer or depressing the immune system.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:

• Section II, Clause 4.1 – Substantiation

• Section II, Clause 4.2.1 – Misleading claims

RESPONSE
Despite repeated attempts and an invitation to address the merits of the matter, the ASA was unable to elicit a response on the merits from the respondent. In its letters to the ASA, the respondent refused to address the merits, instead it raised several points in limine.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

Points in limine
• SASA has no locus standi before the ASA

The respondent submitted, inter alia, that there are two types of complainants in terms of the Code: consumer complainants and competitor complainants. SASA is an industry body and is therefore not a consumer for the purposes of the Code. The ASA has accepted that the present complaint falls within the definition of “Competitor complaints” as defined in Clause 4.12 of Section I. However, SASA is not a commercial entity or an individual with a commercial interest. It is not even apparent that SASA is a juristic person. It appears to be a loose association made up of members. It does not, therefore, meet the requirements of the Code to lodge a complaint.

It further submitted that Clause 3.1.2 of the Procedural Guide requires that the identity and contact details of the complainant(s) must be disclosed to the ASA. To the extent that SASA is acting on behalf of its member(s), it fails to satisfy the requirement of the Code by not disclosing on whose behalf the complaint is being made.

It submitted that, to the extent that the ASA finds that SASA is a competitor in that they represent competitors, then it is hardly in good faith that a competitor hides behind the veil of a loose industry organisation to prosecute a complaint.

The respondent requested the ASA to consider whether the present complaint is vexatious and in bad faith. A complainant (without disclosing their identity) hiding behind the veil of an industry organisation must be viewed with a certain amount of suspicion in that it begs the question: what is the complainant attempting to hide. The presumption must be that the complaint is in bad faith.

Accordingly, it submitted, SASA has no locus standi before the ASA and the ASA must be precluded from hearing the complaint.

The Directorate notes that the respondent, in its later arguments, referred to a matter that was heard by the ASA’s Final Appeal Committee (FAC) in 1998 (Canderel / South African Sugar Association (21 April 1998)), in which the complainant (SASA) also appeared as the complainant of first instance. The respondent was therefore aware that the ASA had previously entertained complaints by SASA, and that at least one complaint went on appeal to the ASA’s highest authority without there being a question of SASA’s locus standi.

It is clear from this that the ASA has, at least for 11 years now, considered SASA to have locus standi before it. In addition, it is noted that the ASA has in the past considered many complaints lodged by industry bodies, and will continue to do so. Clause 14 of the Preface to the Code states, inter alia,

“ASA procedures are designed to assist any person who wishes to complain about an advertisement (advertisers, consumers, competitors, agencies, industry bodies, etc)” (our emphasis).

In light of this, the Directorate is satisfied that SASA has the necessary standing before it to lodge the present complaint.

The rest of the respondent’s arguments on this issue therefore fall away, as SASA is the complainant in this matter and its details have been disclosed. The Directorate is therefore satisfied that the complaint is not in bad faith.

• Identification of the sections of the Code to which the complaint relates

The respondent submitted that Clause 3.1.3 of the Procedural Guide requires that the grounds on which the complaint is based are clearly stated. If possible, the sections of the 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.

It submitted that the complainant has failed to identify which sections of the Code the respondent has allegedly contravened. The complainant has also failed to show good reason why it is not possible for it to do so. SASA has experience in ASA matters (refer, for example, the matter of Canderel / SASA that was considered by the Final Appeal Committee in 1998), and ought to be aware of the requirements of the Code. It hardly falls on the ASA to step into the shoes of the complainant and identify which sections of the Code are alleged to have been contravened. This brings the impartiality of the ASA into question and impinges on the rules of natural justice.

The Directorate notes that, on a proper reading of Clause 3.1.3 of the Procedural Guide, it is clear that there is no requirement that, where a complainant does not identify the sections of the Code to which the complaint relates, the complainant must motivate why it is not able to do so. It is not a question of why the complainant did not do so, it is a question of whether the complainant did so.

In the event that a complainant did not identify the relevant sections, the clause specifically provides that the Directorate 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.

The Code explicitly empowers the Directorate to identify the sections it regards as relevant in a case such as the present one. The respondent’s submissions are accordingly rejected.

• The basis of the complaint is factually incorrect

The respondent submitted, inter alia, that it is trite or implied that a complaint must be in relation to the specific wording in an advertisement. In this instance the complainant states that the respondent’s advertisement contains words to the effect that “sugar causes weight-gain, diabetes or sugar-shock”. The respondent denied that its advertisement contains words to this effect. The advertisement in fact contains words to the effect that “a diet high in sugar” and “too much sugar” can cause these problems. The complaint is therefore not based on a factually correct basis. It is procedurally unjust for the respondent to defend a complaint that is based on a factually incorrect basis, and it is highly improper for the ASA to ask the respondent to answer such a complaint.

The Directorate rejects this argument, as the respondent’s submissions are incorrect. Nowhere in the complaint is it said that the advertisement contains words to the effect that “sugar causes weight-gain, diabetes or sugar-shock”, as was suggested by the respondent. The complaint states, inter alia, that “the information on sugar in the advertisement is incorrect”, and goes on to explain that “there is no evidence that sugar causes weight gain, diabetes, or ‘sugar-shock’.” It also disputed any link between sugar and hypertension, cardiovascular disease, obesity, cancer or depression of the immune system. This is not the same as saying that an advertisement contains specific claims.

It is trite that the Directorate considers advertising as a whole, and looks at what the hypothetical reasonable person will understand the advertising to mean. In addition, Clause 4.1 and Clause 4.2.1 of Section II make specific provision for implied claims. The ASA can therefore investigate the implied communication of an advertisement.

In essence, the complaint in the present matter is that the advertisement creates a specific perception with the hypothetical reasonable person that is not true.

Accordingly, the complaint is not factually incorrect as suggested by the respondent.

• The Directorate’s refusal to rule on the points in limine first

After the Directorate received the respondent’s letter in which it raised the above points in limine, the Directorate advised the respondent that all points in limine and other matters raised in response to the complaint would be dealt with in the ruling.

The respondent then argued that this approach was unusual. In terms of legal proceedings and in terms of the current South African legal practice, a decision is made on points in limine prior to a matter proceeding. Secondly, the respondent took issue with submitting its response on the merits because it believed it would suffer prejudice if it were to spend money in order to pay for the verification letter from an independent expert and waste time in collating the relevant research if any of the points in limine are upheld.

The Directorate rejects this argument. The duty and jurisdiction of the ASA is to administer the Code of Advertising Practice. Clause 8.2.2 to 8.2.2.2 of the Procedural Guide provides that the Directorate shall call on the party, against whom a complaint has been made (who shall be referred to as the respondent), to respond to the complaint within three days.

Clause 8.2.2.3 of the Procedural Guide states that if the complaint or issue requires the provision of substantiation by the respondent, the Directorate shall call for such substantiation and shall specify the time period for its provision. The respondent will generally be given 48 hours to provide substantiation.

Clause 4.1 of Section II states, inter alia, that “Before advertising is published”, an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate. In short, the respondent is required to, in terms of the Code, have adequate substantiation on hand before publishing its advertising.

The respondent was advised in writing that the Directorate would consider its points in limine as well as the merits, should the need arise.

In Vodacom 4U / MTN / 10575 (8 April 2008), the Directorate ruled as follows:

“The Directorate notes, however, that in terms of its procedures, an advertiser is given an opportunity to respond to a complaint in full. Should an advertiser raise a preliminary issue such as the one raised by the respondent, it must also address the merits in the alternative, so as to cover the possibility that the preliminary point might be dismissed. If the advertiser fails to also address the merits of the matter, it runs the risk of having its point dismissed and then leaving the issue to be decided without its comments”.

The Code specifically requires all advertisers to have in its possession all documentary evidence before advertising, so that when a complaint is made against it, it can submit such evidence in a short space of time. The respondent can therefore not argue that it would be prejudiced by virtue of having to subject its substantiation to independent verification, as it was compelled to have such independent verification on hand before it placed its advertising.

The Directorate is satisfied that the principles audi alteram partem were satisfied, and that the procedures of the Code were adhered to.

The respondent’s points in limine have been rejected. Accordingly, the Directorate will proceed to consider the merits of the matter.

Substantiation
As noted above, the respondent’s advertisement claims, inter alia:

“Too much sugar… can cause cancer”;
“a diet high in sugar can cause weight-gain”;
“a diet high in sugar can cause… diabetes”;
“a diet high in sugar can cause… sugar-shock”; and
“sugar excess can suppress your immune system and increase the risk of developing cancer”.

The complainant objected, in essence, to the suggestion that sugar can cause any of these conditions, as there is no evidence to support this. It added that the articles referenced in the advertisement could not find any significant relationship between sugar and the risk of getting cancer or depressing the immune system.

Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.

As recorded above, the respondent did not submit any arguments on the merits of the matter, nor did it submit any evidence in support of its claims.

Accordingly, the respondent’s claims are unsubstantiated and therefore in contravention of Clause 4.1 of Section II.

Given the above:

The claims must be withdrawn;

The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;

The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;

The claims may not be used again in their current format until new substantiation has been submitted, evaluated and a new ruling is made in terms of Clause 4.1.7 of Section II of the Code.

Given that the respondent has ignored “a reasonable request for co-operation”, and given that an adverse ruling has been made, an Ad–Alert will be issued to ASA members not to accept advertising making use of the offending claims.

The complaint is upheld.

In light of the above, it is not necessary to consider Clause 4.2.1 of Section II at this time. It is noted, however, that in the event of the Directorate receiving new substantiation, or the matter going on appeal, this clause may well be open for consideration again.

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