Posted 15 November 2012
A complaint was laid with the ASA against this product. In essence, the complainant argued that this advertisement is highly misleading and that certain claims cannot be substantiated. The complaint stated, among other that … ” is misleading, because the Solal product does not contain the full repertoire of fruit and vegetables, but simply some of the constituents which survive the processing method, and are derived from extracts of fruit and vegetables. There is no evidence that the product contains all the beneficial constituents that are naturally occurring in fruit and vegetables without the sugar. He added that the product, for example, contains no fibre.”
The ASA ruled in favour of the complainant requiring Solal to remove the misleading claims.
|Solal 24 in 1 Super Fruit & Veg Drink / HA Steinman / 19732|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
14 Nov 2012
Dr Steinman lodged a consumer complaint against the respondent’s advertisement appearing on their website www.solaltech.com. The advertisement promotes the respondent’s “24-IN-1TM SUPERFRUIT & VEGETABLE DRINK”, which purportedly contains “18 fruits, vegetables and herbs with 5 antioxidants and probiotics”.
It states, inter alia, as follows:
“For optimum nutrition, the World Health Organisation and the South African Food Based Dietary Guidelines recommend at least 5 fruit and vegetable portions per day. Every 10ml SOLAL 24-IN-1TM Superfruit & Vegetable Drink provides 18 fruit and vegetables, 5 antioxidants and 500 million probiotics. To achieve this intake of nutrients, you would usually have to consume large quantities of fresh fruit, vegetables and fruit juices, which would greatly increase your intake of sugar and calories”.
The website adds that “… we use vegetable and fruit extracts where most of the sugar has been removed, leaving only concentrated nutrients and vitamins, resulting in only 17Cal per serving and 75% less sugar than fruit juices”.
In essence, the complainant argued that this advertisement is highly misleading and that certain claims cannot be substantiated. He explained that the advertisement effectively compares the respondent’s product with fresh fruit, vegetables and fruit juices, and implies that the Solal products is superior because it contains more active and useful ingredients from fruit and vegetables without the added sugar.
This is misleading, because the Solal product does not contain the full repertoire of fruit and vegetables, but simply some of the constituents which survive the processing method, and are derived from extracts of fruit and vegetables. There is no evidence that the product contains all the beneficial constituents that are naturally occurring in fruit and vegetables without the sugar. He added that the product, for example, contains no fibre.
There is no evidence that this product matches or supplies more than what is found in fruit and vegetables when consumed as recommended by the WHO. At best, it supplies some of the constituents found in fruit and vegetables.
He added that the respondent “… warns consumers against the ‘sugar’ in fruit juices. The ordinary average consumer considers sugar to be sucrose, which is not a major aspect of fruit juices, but fructose, this is misleading”.
Finally, he contested that for a product to claim to contain probiotics, it is not sufficient to show that it mixes probiotics into the product. It would have to be shown that the product has actual probiotic activity. He explained that there have been various studies that show no, or insufficient probiotic activity in many products that claim to contain probiotics. The respondent therefore has to provide substantiation that its product contains the appropriate dose of probiotics, that it remains bioavailable and that it actually delivers an effect in humans.
In the event of an adverse ruling, the complainant argued that sanctions are warranted, as well as an Ad Alert, given the respondent’s tendency to flout ASA rules and rulings.
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)
• Section II, Clause 4.2.1 (Misleading claims)
Fluxmans attorneys submitted a response on behalf of the respondent.
Initially, it insisted that the Directorate should recuse itself from this matter, as it is biased against the respondent. It added that the complainant is vexatious, and should be regarded as a competitor complainant. Finally it argued that the provisions of the Code dealing with Misleading claims are not applicable, as the advertising expresses an opinion on something which is the subject matter of controversy (refer Clause 2.4 of Section I).
In addition to this, it argued that the complainant lacks locus standi to lodge this complaint, as he has not alleged, let alone adduced any evidence that he, or anyone else, has been harmed or prejudiced by this advertisement.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The respondent’s concerns in terms of a perceived bias on the part of the Directorate have since been addressed in a ruling under the reference Solal Stress Damage Control / K Charleston / 19746 (22 March 2012). These comments need not be repeated save to say that the Directorate is satisfied that there is no merit in this argument. As such, the Directorate sees no reason to recuse itself from the matter.
Status of the complainant
Not surprisingly, the respondent is again arguing a point that has been dealt with extensively in prior rulings. In Solal Technologies / HA Steinman / 17588 (19 October 2011), the Directorate considered virtually the same argument in relation to the complainant’s standing as a consumer vs. competitor complain, as well as the alleged vexatious complainant. These concerns were dismissed, and the respondent has not put anything before the Directorate now to suggest otherwise, nor has it appealed the previous ruling.
With regards to the allegation that the complainant lacks locus standi, it would appear that this argument is based on the fact that complainant has not alleged, or adduced evidence that he, or other members of the public stand to be harmed as a result of this advertisement. As a result, the respondent believes that the Directorate is precluded from investigating this complaint.
The Directorate does not share the respondent’s view.
Clause 1 of Section I of the Code states, inter alia, as follows:
“All advertisements should be legal, decent, honest and truthful … All advertisements should be prepared with a sense of responsibility to the consumer … No advertisement should bring advertising into disrepute or reduce confidence in advertising as a service to the industry and to the public”.
Clause 4.1 of Section II stipulates that advertisers must hold substantiation for any and all direct or implied claims that are capable of objective substantiation. Furthermore, it stipulates that such substantiation should be obtained “before advertising is published”.
The complainant has articulated why he believes that the respondent will not be able to substantiate the claims at issue. Clearly, in the context of the preamble of the Code (Clause 1 of Section I), claims that are dishonest or misleading are also likely to bring advertising into disrepute and/or reduce consumer confidence in advertising as a service to the public. This alone satisfies the question of locus standi.
There is nothing in the Code that prohibits consumers (or competitors) from lodging a complaint if they have not necessarily been “caught” by false advertising. The Procedural Guide specifically lists the criteria for lodging a complaint. Provided that a complaint meets the criteria stipulated here (which this complaint does), the Directorate has no reason to ignore a valid complaint.
Clause 2.4 of Section I stipulates that any advertising that expresses an opinion on a matter which is the subject of controversy, and that controversy falls within areas of public policy and practice, such opinions are not subject to the provisions of the Code dealing with misleading claims (which are contained in Clause 4.2.1 of Section II of the Code).
The respondent’s argument appears to be based on its view that the advertisement meets these criteria by virtue of the fact that it “expresses opinions regarding the controversial subject of complementary medicines …”
This is somewhat of a disingenuous argument, and the Directorate notes that the advertisement expresses absolutely no view on complementary medicines, or allopathic medicines for that matter. It promotes a “24-IN-1TM SUPERFRUIT & VEGETABLE DRINK”, which supposedly contains “18 fruits, vegetables and herbs with 5 antioxidants and probiotics”.
As such, the respondent’s argument is rejected, and there is no reason to discount the provisions of Clause 4.2.1 of Section II (Misleading claims) at this time.
It would appear that the complainant has taken issue with some claims on the basis that they are unsubstantiated, and others on the basis that they communicate a misleading message to consumers.
Insofar as the complaint of (only) misleading advertising is concerned, the complainant argued that “… Solal warns consumers against the ‘sugar’ in fruit juices. The ordinary average consumer considers sugar to be sucrose, which is not a major aspect of fruit juices, but fructose, this is misleading”.
The Directorate is unclear as to how or why this would be misleading to consumers. The complainant has not articulated this concern, and the Directorate has no reason to simply assume that consumers would be misled because fruit juices contain fructose and not sucrose.
The Directorate will therefore not consider this aspect of the complaint at this time.
The claims that are disputed on the basis that they are unsubstantiated (and by inference misleading) are that the product contains “18 fruits, vegetables and herbs …” with 5 antioxidants and “probiotics”. The complainant disputed the presence of 18 fruits and vegetables (including all their beneficial constituents) as well as the presence of probiotics in a manner and at a dose that is of benefit to humans.
Clause 4.1 of Section II stipulates that advertisers should not publish claims that are capable of objective verification unless they hold such objective verification. It adds that this verification should either emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate. The respondent has not submitted any evidence for these claims.
Accordingly, the references to “18 fruits, vegetables and herbs with 5 antioxidants and probiotics” are currently unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
The respondent is therefore instructed to:
Withdraw this, and any similar claims from its advertising;
Ensure that the process of withdrawal is actioned with immediate effect upon receipt of this ruling;
Ensure that the relevant claims are completely withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide;
Refrain from using these claims again in future unless new substantiation has been submitted to the ASA, and a new ruling has been issued accepting the claims as substantiated.
The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide.
This aspect of the complaint is therefore upheld.
The Directorate notes that the complainant requested not only sanctions, but also an Ad Alert, in the event of an adverse ruling.
The complainant is therefore afforded ten days from the date of this ruling to suggest which sanctions he believes are appropriate and why.
After this period, the respondent will be afforded equal opportunity to comment on this issue, after which the Directorate will proceed to consider the issue in accordance with the procedures and requirements of the Code.