Posted 30 November 2012
This complaint regarding Solal’s “Nutritional supplements to help diabetics” was dismissed by the ASA with the comment: “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 Nutritional Supplements / ARHIA / 18302|
Ruling of the : ASA Directorate
In the matter between:
Professor Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
29 Nov 2012
Professor Jobson, claiming to represent an organisation called ARHIA (Association for Responsible Health Information and Advertising) lodged a consumer complaint against the respondent’s advertisement appearing on its website www.solaltech.com.
The advertisement is headed “Nutritional supplements to help diabetics”, and promotes eight of the respondent’s products, being “Alpha Lipoic Acid (Dual R-form)”, “Chromium Polynicotinate”, Aminoguanidine”, “New d-Chiro-Inositol (Available only from SOLAL)”, “L-Carnitine”, “Magnesium Glycinate”, “Invisible FibreTM” and “Naturally SweetTM”. Each product has a brief description of the benefits of consumption.
The complainant effectively raised two objections:
The relevant claims made for each individual product need scientific substantiation, and
There is no evidence that any of the individual products have been registered or approved by the Medicines Controls Council (MCC), rendering them in breach of Appendix F of the Code.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant referred to the following sections of the Code as being relevant to this dispute:
• Section II, Clause 4.1 – Substantiation
• Appendix F – References to diseases in advertising
Attorneys Fluxmans, on behalf of the respondent, raised the following issues:
The Directorate is biased against the respondent,
The complaint is academic as the section that housed the advertisement has since been shut down,
The provisions of the Code relating to Misleading claims are not applicable to this complaint,
The ASA’s requirement for product-specific evidence is unreasonable and inaccurate,
The complainant is not a consumer complainant, but rather a competitor complainant as contemplated in Clause 4.12 of Section I of the Code. The respondent also suggested that the complainant is vexatious and abusing the ASA processes.
The complainant in many instances attaches an unreasonable interpretation to the actual claims made. If the claims were to be considered realistically, within the context of the advertisement as a whole, the meaning would be clear and understandable. To this effect, it attached documentation it believes adequately substantiates the relevant claims made for each product. It also requested the Directorate to advise whether or not it wanted motivation for why the documentation should be regarded as having emanated from an independent and credible expert source.
In addition, it suggested that the Directorate should advise whether or not it wished for an independent and credible expert to verify the claims based on the documentary evidence relied on. It also requested confidentiality for its supporting documentation,
It added that it has requested documentary evidence from its European based manufacturer of its “R-form Alpha Lipoic Acid” to show that it is indeed the only of its kind available in South Africa. However, at the time of submitting the response it had not yet received same. It therefore took the decision to suspend the claim that “SOLAL Technologies is the only brand of R-form Alpha Lipoic Acid in South Africa” until such evidence is received.
Arguments were also made in relation to the dispute in terms of Appendix F of the Code, but these are not summarised as the issue has since become moot (see explanation below).
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Before considering the complaint, some clarification is needed for the sake of proper context:
Due to an overlap in arguments raised in another complaint by the complainant, the dispute relating to the claims made for “Naturally SweetTM” will not be considered at this time and in this ruling. This aspect was combined with another file under reference Solal Deadly Diabetes / ARHIA / 18303.
The Directorate’s jurisdiction is limited to the actual content of the advertising complained about. It cannot include features or concerns that arise from other media or other advertising when deliberating on one particular advertisement. The complainant took issue with various aspects and claims made by the respondent in other advertisements or URLs that promote the individual products featured in the advertisement. These claims and comments, however, are not properly before the Directorate, and the Directorate cannot consider these objections at this time, as this particular complaint relates only to the actual advertisement as described at the top of this ruling. The Directorate will therefore not entertain the peripheral complaints / claims at this time, and will only deal with the advertisement objected to.
Since receiving the complaint and the response thereto, Appendix F of the Code has been completely removed from the ASA Code of Advertising Practice. As a result, any concerns that may have arisen in terms of this appendix are no longer valid.
In each instance where the complainant identified claims that he wishes to dispute, he quotes the relevant claim/s and states “These claims need to be scientifically substantiated”. He does not, however, explain on what basis (if any) he believes that the respondent does not hold the relevant substantiation.
While the Directorate notes that the complainant appears to have provided reasons insofar as the separate webpages promoting the respondent’s Lipoic Acid products are concerned (page 2 and page 3 of the complaint), as well as the respondent’s Chromium polynicotinate product (page 4 of the complaint), this relates to advertising that was not properly complained of (refer point 2 above, under “ASA DIRECTORATE RULING”).
The complainant appears to be of a view that this one complaint can cover any and all advertising for each of the individual products, and therefore the Directorate should incorporate all the other advertisements appearing on all the other URLs identified by the complainant.
This is a flawed expectation. It is trite that the Directorate considers each piece of advertising communication on its own and within the context in which it appears. If the complainant wished for the Directorate to consider all the claims made in each individual URL identified, he should have lodged separate complaints against such execution.
In addition, the claims are rather divergent, meaning that the possible reasons for alleging a breach of the Code for one claim would not necessarily apply to the next. In the absence of clear motivation from the complainant for each and every claim objected to, the Directorate cannot properly consider the veracity of these claims.
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”.
In effect, all the complainant has done is pointed out that the respondent’s efficacy and related claims require substantiation. This principle is already incorporated in the Code (refer Clause 4.1 of Section II). This submission does not, however, take the matter any further.
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.
It is therefore not necessary to express any further comment on the other objections raised by the respondent at this time.