Solal Tech 3-per-day – ASA ruling

Posted 13 December 2012

ASA ruling: “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 Tech 3-per-day / K Charleston / 19889
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

11 Dec 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6360

Mr Charleston lodged a consumer complaint against the respondent’s advertising and labelling as it appeared on its website www.solaltech.com.

The advertisement promotes the respondent’s “3-PER-DAYTM” product by claiming as follows:

“3-Per-DayTM is an all-in-one micronutrient formula that supplies all the vitamins, minerals and anti-oxidants you need, in optimal doses, and in the most absorbable and effective form possible. 3-Per-DayTM works on a cellular level to repair tissue, remove toxins and boost energy, helping you cope with the demands of a stressful life, keeping you younger and healthier for longer …”

COMPLAINT
The complainant quoted the above section, and stated that “The website offers no evidence for these claims made for the product. The claims have little scientific basis and require substantiation …”

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complainant’s submissions, the Directorate considered the provisions of Clause 4.1 of Section II (Substantiation) as relevant.

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 four arguments, being that:

The complainant did not have locus standi to complain,

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, and

The Directorate should suspend this investigation pending the outcome of High Court Proceedings instituted against it by the respondent.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

While 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), the Directorate notes that it is currently faced with an incomplete complaint, and therefore does not need to address the other issues raised in response.

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. If possible, the sections of this Code to which the complaint relates, should be identified. Should the complainant not be able to do so, the ASA will consider the complaint in terms of the sections it regards as relevant and deal with the complaint as if it had been lodged in terms of those sections (our emphasis).

3.1.4 The advertisement to which the complaint relates must, in the case of print media, be attached, if possible. In the case of other media, details of the advertiser, medium, and a description of the advertisement must be provided, and, if possible, the time and date of transmission (in regard to broadcast media) and nature and location (in regard to outdoor advertising).

3.1.5 The address, contact name and number of the offending advertiser or of the advertising practitioner acting on the advertiser’s behalf should be included, if possible.

3.1.6 Consumer complaints will be dealt with free of charge.

3.1.7 Competitor complaints will be subject to a non-refundable filing fee”

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.

What complicates things even more, is the fact that the claim contested does not only comprise of one efficacy or superiority aspect, but many. It reads as follows:

“3-Per-DayTM is an all-in-one micronutrient formula that supplies all the vitamins, minerals and anti-oxidants you need, in optimal doses, and in the most absorbable and effective form possible. 3-Per-DayTM works on a cellular level to repair tissue, remove toxins and boost energy, helping you cope with the demands of a stressful life, keeping you younger and healthier for longer …”

Even on cursory reading, it appears that this claim implies at least the following:

The respondent’s product supplies all the vitamins, minerals and antioxidants that one needs;

It supplies these in optimal doses;

It supplies thee in the most absorbable and effective form possible;

The product works on a cellular level;

The product repairs tissue at a cellular level;

The product removes toxins from the body or cells;

The product boosts energy;

This boost in energy helps one cope with the demands of a stressful life;

Consuming this product will result in staying younger and healthier for longer.

The complainant does not pinpoint which aspect he is contesting, or explain (if this is indeed the case), why he believes all the above issues are problematic. He merely alleges, without any explanation, that there is no substantiation for these claims. His complaint provides nothing to suggest that he has looked for, but was unable to find any evidence, or that he the evidence available is unsound or inaccurate.

While the Directorate notes that the complainant argues that the “… claims have little scientific basis …” he does not explain or motivate this. In effect, 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 time, based on the complaint at hand.

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