Solal Tech Stress Damage Control – ASA ruling

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Posted 18 January 2013

” . . the complainant  . . . has not advanced any arguments to back up his allegation that the claims are unsubstantiated. As such, the complaint is not complete, and amounts to little more than an allegation. In short, the complainant has not explained WHY he believes that the respondent has contravened the provisions of Clause 4.1 of Section II (which requires independent substantiation), he has simply alleged that the respondent has done so.” “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 point in time, based on the complaint at hand.”

 

Solal Tech Stress Damage Control / K Charleston / 19747
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

 

07 Jan 2013

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6368 

Mr Charleston lodged a consumer complaint against advertising appearing on the respondent’s website www.solaltech.com

The advertising promotes the respondent’s “STRESS DAMAGE CONTROLTM” product stating, inter alia, as follows: 

“Stress Damage ControlTM is an anti-stress formula. It prevents excessive cortisol and adrenaline production when exposed to long term stress. Stress Damage ControlTM protects the brain and heart from the dangerous physical damage and consequences that stress causes, such as raised blood pressure and heart attack. It also prevents the symptoms of excessive stress exposure such as memory loss, fatigue, insomnia and feeling overwhelmed”. 

COMPLAINT

The complainant submitted that the ASA has indicated in many previous rulings that product-specific substantiation is required. This is especially significant in this instance, as the product claims to be a proprietary formulation. 

He added that the advertisement offers no evidence for the claims made by the product, and that these claims have little scientific basis and require substantiation. 

Lastly, it was noted that the advertising falls foul of the provisions of Guideline 4.3, dealing with “Stress claims”. 

It should also be noted that the complainant referred to several claims that do not appear on the advertising concerned. As such, the Directorate did not consider these claims. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE The complainant identified the provisions of the following clauses of the Code as relevant: 

• Section I, Clause 4.25 – Scientific substantiation 

• Section II, Clause 4.1 – Substantiation 

• Guideline 4.3 – Stress claims 

RESPONSE

Fluxmans attorneys, on behalf of the respondent, did not address the merits of the matter, but took procedural issues and raised interpretive issues. Essentially, it raised two arguments, being that: 

The complainant is vexatious and / or a competitor complaint disguised as a consumer complaint, 

The Directorate should recuse itself because the respondent perceives the Directorate to be biased against it. 

ASA DIRECTORATE RULING

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

At the outset it should be noted that the “Guidelines” section to the Code states: 

“These Guidelines are not part of the ASA Code but relate to laws, rulings and procedures that can affect the preparation of advertising copy …” 

It is therefore clear that the ASA does not enforce these guidelines, but merely provide them for the assistance of advertisers. 

Insofar as the merits are concerned, it is noted that the majority of the respondent’s concerns have, in fact, already been considered and rejected in prior ASA rulings (refer Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for example where the perceived bias, as well as the status of the complainant were addressed). 

Over and above this, the Directorate notes that it is currently faced with an incomplete complaint. 

Clause 3 of the Procedural Guide explains what is required for a complaint to be “valid” and capable of proper investigation. It reads, inter alia, as follows: 

“3.1.1 The complaint must be in writing. 

3.1.2 The identity and contact details of the complainant(s) must be disclosed to the ASA. When lodging a consumer complaint, the identity or passport numbers of the complainant(s) must also be disclosed. 

3.1.3 The GROUNDS ON WHICH THE COMPLAINT IS BASED MUST BE CLEARLY STATED …” 

While the complainant has complained in writing, disclosed his contact details and ID number, and provided a copy of the offending advertising, he has not articulated the basis on which he believes that the respondent has contravened the provisions of Clause 4.1 of Section II of the Code. 

Putting aside the fact that the complainant identified claims that do not appear in the actual advertisement complained of, he has not advanced any arguments to back up his allegation that the claims are unsubstantiated. As such, the complaint is not complete, and amounts to little more than an allegation. In short, the complainant has not explained WHY he believes that the respondent has contravened the provisions of Clause 4.1 of Section II (which requires independent substantiation), he has simply alleged that the respondent has done so. 

This is improper, and for this reason alone, the complaint must fail (See Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010), for detailed explanation of why the grounds are essential to any dispute). 

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 point in time, based on the complaint at hand.

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