Solal Solal – Sugar Association, again

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Posted 29 August 2011

The arguments by Solal Technologies in this ASA ruling are somewhat bizarre. Solal argues, among other, that because they paid for accessing the articles or for researching the articles required to substantiate their claims, that this information is therefore confidential and cannot be divulged.

Imagine if a large pharmaceutical company claimed that the evidence in support of their drug cannot be released because it is confidential, or because as they had paid for articles supporting the claims, that consumers are not allowed to see the evidence to support their claims. I am sure there will be outrage, in particular from the CAM industry!

Solal Technologies / SASA / 17484
Ruling of the : ASA Directorate
In the matter between:
South African Sugar Association Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

25 Aug 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5695

BACKGROUND
On 5 May 2011, the ASA Directorate held that the following claims made by the respondent in an advertisement for its “Naturally Sweet” and “Stevia Sweet” products were, inter alia, unsubstantiated and in breach of Clause 4.1 of Section II:

“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”.

“Healthy alternative to sugar …”

On 28 June 2011, attorneys Fluxmans Inc, on behalf of the respondent, submitted a letter with annexures to the ASA for consideration in terms of Clause 4.1.7 of Section II. However, due to several procedural arguments raised by the respondent, the Directorate was not in a position to consider the new substantiation at the time, and instead had to consider and rule on the procedural issues, which it did in a ruling dated 27 July 2011.

SUBSEQUENT TO THE RULING
On 5 August 2011, and again on behalf of the respondent, Fluxmans Inc submitted a further letter with annexures for consideration in terms of Clause 4.1.7 of Section II. It argued, inter alia, that three of the annexures (marked “NE4”, “NE7” and “NE14”, respectively) are confidential.

The respondent also argued that the Directorate’s ruling of 27 July 2011 is procedurally irregular and incompetent, and submitted that it regards the ruling as a nullity.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the respondent’s arguments, the following clauses of the Code were taken into account:

• Section I, Clause 5 – Confidentiality

• Procedural Guide, Clause 5 – Documentation submitted to the ASA

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

Can the Directorate make and publish a ruling on the question of confidentiality?
The respondent argued that Clause 5.3 of the Procedural Guide obligates the Directorate to inform only the party that submitted the documentation of its evaluation regarding confidentiality, and does not authorise the Directorate to publish a ruling to both parties on that issue.

Clause 5.3 of the Procedural Guide states:

“The Directorate will evaluate, at its absolute discretion, whether or not documentation marked confidential qualifies as confidential in terms of Clause 5 of Section I, and shall inform the party that submitted the documentation accordingly.

5.3.1 Should the Directorate find that the documentation is not confidential in terms of Clause 5 of Section I, the party that submitted such documentation will be given an opportunity to withdraw such documentation.

5.3.2 Should the Directorate find that the documentation submitted as confidential qualifies as confidential in terms of Clause 5 of Section I, the Directorate may request a non-confidential summary of the documents in question.”

The Directorate’s obligation in terms of this clause is, inter alia, to let the party who submitted the relevant documentation know of its decision. In other words, the Directorate must inform that party whether or not it regards the documentation as confidential. There is, however, nothing preventing the Directorate from informing anyone else of its decision. The clause certainly does not include the word “only”, which the respondent included in its argument as to the interpretation of the clause. The respondent did not give any reasons why it believes that the word “only” should be read into the clause. It also neglected to argue that any harm could result should the complainant be informed of the Directorate’s decision.

In any event, the Directorate is satisfied that the Clause does not prevent it from informing the complainant of its decision.

The respondent’s argument is therefore dismissed.

The Directorate will now proceed to consider whether Annexures “NE4”, “NE7” and “NE14” qualify as confidential in terms of Clause 5 of Section I.

Confidentiality
The respondent argued that annexure “NE4” is confidential because it paid for the right to access the literature and is contractually prohibited from making it available to other persons. It submitted a copy of the terms and conditions of its access to the website and the documents evincing payment for the service. It argued that the document is confidential as it constitutes the intellectual property of a website owned and operated by the “Pharmaceutical Press”, a division of the Royal Pharmaceutical Society of Great Britain, and only paid up subscribers to the website are entitled to access the website, download and use the document.

The Directorate is not convinced that the contents of the document in itself constitutes confidential information, as the information is referenced to published articles about Stevioside, rebaudioside A, steviol and steviol glycosides. However, insofar as the respondent had to pay in order to access the actual document from the website (it appears to be www.medicinescomplete.com), the Directorate will not provide the complainant with a copy of the document. This does not, however, prevent the Directorate from identifying the document to the complainant so that it may obtain access to the document through the MedicinesComplete website.

The respondent argued that Annexure “NE7” is confidential “as it relates to [the respondent’s] own product ‘Naturally Sweet’ and was compiled in the course of the research and development of that product. As such it has a commercial value to [the respondent] and its public dissemination is likely to cause harm to [the respondent].”

The Directorate notes that Annexure “NE7” consists of a published article and references to published articles on the substance sucralose, as well as information from what appears to be a brochure for sucralose. It appears that the respondent has done a literature search on sucralose, a substance which the respondent’s product may or may not contain. However, there is no evidence that any of this research was specifically commissioned by the respondent for the development of the product “Naturally Sweet”, nor is there any evidence that the literature has any relevance to that product. The Directorate does not, therefore, agree with the respondent that Annexure “NE7” qualifies as confidential.

The respondent argued that Annexure “NE14” is confidential for the reasons stated in a letter from Sarel F. Malan, a registered pharmacist, dated 5 August 2011. In essence, the reasons given were that the references and full length articles were supplied by Professor Malan on a confidential basis and was the product of his own literature research, compiled by him for the sole purpose of substantiating the respondent’s claims. He added that “some of the articles are only available by paid subscription.”

The Directorate notes that Annexure “NE14” consists of two full length published articles on stevioside, steviol and steviol glycosides, as well as three abstracts from published articles on sucralose. Professor Malan’s letter does not identify which of the articles are “only available by paid subscription”. The Directorate did a cursory investigation and was able to access all three abstracts on sucralose, as well as the full text of the article on stevioside. The only part of Annexure “NE14” that was not freely accessible was the full text of the article entitled A critical review of the genetic toxicity of steviol and steviol glycosides by D.J. Brusick. The Directorate was, however, able to access the abstract of the article. Accordingly, insofar as the full text of this article is “only available by paid subscription”, the Directorate will not provide it to the complainant. However, this does not prevent the Directorate from identifying the document to the complainant so that it can access the full text, if it so wishes, by subscribing to the relevant publication.

The Directorate therefore finds as follows:

Annexure “NE4” does not qualify as confidential in terms of Clause 5 of Section I, except insofar as it is only available by paid subscription;
Annexure “NE7” does not qualify as confidential in terms of Clause 5 of Section I;
Annexure “NE14” does not qualify as confidential in terms of Clause 5 of Section I, except insofar as the full text of the published article A critical review of the genetic toxicity of steviol and steviol glycosides by D.J. Brusick is only available by paid subscription.

In terms of Clause 5.3.1 of the Procedural Guide, the respondent will be given an opportunity to withdraw the relevant documents.

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