Solal Omega Fatty Acids product – ASA ruling

Posted 11 December 2012

A consumer laid a complaint with the ASA against the claims being made for this product, which claimed, among other, to be  beneficial for use individually or in combination in relation to a host of conditions. 

The ASA dismissed part of the complaint, and ruled for a certain aspect of the complaint that “[I]n the absence of any evidence to suggest that this is true, the Directorate has no option but to find that the repeated references to the respondent’s omega fatty acids for the beneficial use of the listed conditions are currently unsubstantiated.” 

Solal Tech Omega Fatty Acids / R Jobson / 19680
Ruling of the : ASA Directorate
In the matter between:
Professor M Roy Jobson Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

05 Dec 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6352

Professor Jobson lodged a consumer complaint against the respondent’s booklet titled “Product Information and Health Solutions Guide”, which was available on the respondent’s website www.solaltech.com.

The booklet appears to promote several of the respondent’s products for a variety of medical conditions. It explains, inter alia, that “This Health Guide has been compiled using more than 12,000 peer-reviewed scientific research documents”, and claims as follows:

“With information on each product of the SOLAL Technologies range indicating the health benefits and providing protocols for most medical conditions, utilising nutraceuticals instead of pharmaceutical products …”

It then proceeds to list a large number of medical conditions, and indicates in each instance which of its products should be used.

COMPLAINT
The complainant submitted the above claim implies three distinct things:

That all the Solal products listed in the booklet have health benefits,

That the products promoted in the booklet are suitable and / or appropriate for “most medical conditions” and

That Solal products can be used instead of pharmaceutical products, which implies that these products have been proven to at least be equivalent in efficacy to the pharmaceutical products used for such conditions.

The complainant explained that the only manner in which the third option above could be proven, is if the respondent carried out what is known as “head-to-head” clinical trials, with strict requirements and parameters, to determine whether such equivalence actually exists. The consequence of substituting pharmaceutical products with unproven alternatives could potentially be life-threatening or even fatal.

The complaint was specifically targeted at the various formulations of “Omega Fatty Acids”, being:

• Krill Oil (Neptune NKO®) Omega 3
• Fish Oil Extract Omega 3
• Sol Oil Omega 3 & 6
• Flaxseed Oil Omega 3
• Vegetarian Omega 3TM
• Omega-DermTM

The complainant submitted that, essentially, the respondent’s advertising creates an expectation that its omega fatty acids have been proven beneficial for all the conditions for which they are promoted. This renders such implications subject to substantiation as per the Code.

In addition to the above, the complainant made a lengthy argument about the application of the Code’s Appendix F and how he believes the advertising at issue has contravened the provisions of this appendix. However, since lodging the complaint, Appendix F has been completely removed from the ASA Code of Advertising Practice, which negates any need to consider these particular submissions in this ruling.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were considered relevant:

• Section II, Clause 4.1 – Substantiation

• Appendix F – References to diseases in advertising

RESPONSE
Fluxmans attorneys, on behalf of the respondent, argued that:

The Directorate is biased against the respondent, meaning that the Directorate should recuse itself from this and any other Solal matters;

The provisions of Appendix F of the Code are unconstitutional and ultra vires the ASA’s own Articles of Association, and cannot be enforced on Solal or any other advertisers. (As noted above, this issue is no longer relevant, and the respondent’s argument was merely noted for the sake of completeness).

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.

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

Before getting to the merits of the matter, the Directorate has to clarify a few things, which impact directly on this ruling:

The respondent’s accusations of bias on the part of the Directorate has been dealt with at length in other prior rulings (refer Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for more detail). As such, these allegations will not be entertained again here, save to say that the Directorate is satisfied that there is no merit to the respondent’s submissions.

In addition to this, in the ruling Vitaforce Skin Care / R Jobson / 19035 (23 March 2012), the Directorate dealt with the status of this complainant insofar as him being vexatious and attempting to force the ASA to regulate an industry that the Medicines Controls Council has to date failed to. These concerns were dismissed, and the respondent has not provided anything to convince the ASA to deviate from this approach.

The tenuous link the respondent insists on making between this complainant (and other activists in the industry) and the Treatment Action Campaign (the TAC) has also been discussed and rejected in prior matters (see Solal Technologies – Healthy Fast Foods / M Low / 16575 (15 December 2010) for one such example). The respondent’s reasoning in this regard has been rejected as flawed and without substance, and will not be entertained again in this ruling save to say that the Directorate is satisfied that there is nothing at hand to warrant regarding the complainant as a competitor complainant.

With the aforesaid clarified, the Directorate really has to determine only the following:

What is the likely takeout a hypothetical “reasonable person” would have of the advertising disputed?

Does this likely takeout match the intended communication, or does it in some way fall foul of the relevant provisions of the Code?

When deliberating on matters, the Directorate has to adopt an objective approach, and consider the overall communication of the advertising.

The claim at issue reads as follows:

“With information on each product of the SOLAL Technologies range indicating the health benefits and providing protocols for most medical conditions, utilising nutraceuticals instead of pharmaceutical products …”

The complainant argued correctly that the claim implies that the respondent has objective evidence for the efficacy of its products as recommended in the booklet (in this instance the complaint specifically relates to the respondent’s Omega fatty acid range).

This expectation is reasonable, given that the booklet is titled “Product Information and HEALTH SOLUTIONS GUIDE” (our emphasis). The complainant also noted phrases such as “The first half of the guide … describes what products can be used for a particular health needs [sic] …” and “Products are ranked in decreasing order of potency. Products listed nearer the top of any particular health need are the most effective and have the most scientific research to support their use …”

Moreover, he argued that the claim implies that the respondent’s so-called “nutraceutical” products are at least as effective as regular pharmaceutical products generally used for the relevant medical conditions listed in the booklet.

The respondent has not disputed or argued this point, and has not submitted any evidence to support such an interpretation in relation to its products. It also has not provided anything to suggest that the complainant’s explanation of the “head-to-head” clinical trials to prove such equivalent efficacy is incorrect. As such, the Directorate has no reason at present to doubt this approach.

The booklet promotes the respondent’s Omega products (and particularly those listed in the complaint) as beneficial for use individually or in combination in relation to a host of conditions, ranging from “ANXIETY”, “ASTHMA (TO HELP PREVENT)” and “CANDIDA” to “INFERTILITY (WOMEN)” to “OSTEOARTHRITIS”, “OSTEOPOROSIS”, “STROKE – TO PREVENT”, “WEIGHT GAIN – TO PROMOTE” and “WOMEN – MINIMUM REQUIREMENTS FOR OPTIMAL HEALTH”. In total, it lists these products either in isolation or in different combination for approximately 55 different conditions.

While the Directorate is sensitive to the fact that these products (i.e. the “omega fatty acids” as the complainant terms them) are not promoted as the sole solution, the fact remains that the booklet creates an impression that these products are beneficial when used for those conditions.

In the absence of any evidence to suggest that this is true, the Directorate has no option but to find that the repeated references to the respondent’s omega fatty acids for the beneficial use of the listed conditions are currently unsubstantiated.

Accordingly, all such references are currently in breach of Clause 4.1 of Section II of the Code.

The respondent is therefore instructed to:

Withdraw any and all references or claims where its “Omega Fatty Acids” as listed in the complaint are promoted as beneficial for any particular medical condition;

Ensure that the process of withdrawal is immediately actioned upon receipt of this ruling;

Ensure that any and all inappropriate references as per this ruling are removed within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and

Refrain from creating an impression that its “Omega Fatty Acids” as referred to in the complaint or beneficial for any of the conditions listed in the booklet complained of again in future.

The complaint is partially upheld. 

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