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 / 19888
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=6359

Mr Charleston lodged a consumer complaint against the respondent’s print advertisement appearing in the Cape Times during February 2012.

The advertisement is headed “Whatever your health needs, SOLAL has a solution”, and promotes five products, one being “3-Per-DayTM”, which is recommended for people who “Need a multivitamin, mineral and antioxidant combination”.

It explains that the product “… contains superior bioidentical vitamins in therapeutic higher doses for optimal health and energy …” and that it “… supplies much more than a competing brand: 20x more vitamin A … 3x more vitamin C … 4x more vitamin E … 2x more vitamin B … 5x more zinc … 7x more selenium … 4x more manganese”.

COMPLAINT
The complainant submitted that the “… product makes an unsubstantiated claim about the superiority of its ‘bioidentical’ vitamins. It claims ‘therapeutic higher’ doses – a specific health claim without explicitly referencing what such therapeutic benefits are. It also claims ‘for optimal health and energy’ – something which is un-definable and un-measurable. (Section II Clause 4.2.2 Puffery & 4.2.3 Hyperbole)”.

With regards to the comparison against “… a competing brand …” as referred to in the advertisement, the complainant compared the respondent’s product against a Vital product and a Natrodale product in terms of vitamin and mineral ingredients, noting that the figures do not support the superiority claims made in the advertising. He argued that this falls foul of Clause 7 of Section II (Comparative advertising).

He ended off saying that “The advert offers no evidence for the ‘therapeutic’ claims made for the product ‘for optimal health’. The claims have little scientific basis and require substantiation. Reference was also made to the respondent’s conduct and repeated breaches of the ASA Code, and the complainant requested sanctions in accordance with Clause 14 of the Procedural Guide.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the Directorate considered the following clauses of the Code as relevant:

• Clause 4.1 of Section II (Sanctions)

• Clause 4.2.1 of Section II (Misleading claims)

• Clause 14 of the Procedural Guide (Sanctions)

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 five arguments, being that:

The complainant did not have locus standi to complain,

The complainant is vexatious;

The complainant is actually a competitor complainant disguised as a consumer complainant,

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.

At the outset, the Directorate has to clarify that ordinary consumers do not have standing to lodge complaints that relate to the interests (commercial or otherwise) of commercial entities in competition with one-another. The complainant took issue with the respondent’s comparison to supplying “…much more than a competing brand: …” on the basis that this comparison is flawed and in contravention of the provisions of Clause 7 of Section II.

Such a complaint relates to the competitor interests of other manufacturers of multivitamin supplements, and the Directorate accordingly did not entertain this portion of the complaint.

In addition, and of the complainant’s own doing, it appears that at least some portion of the complaint cannot be ruled on at present, because it would be interpreted as hyperbole or puffery.

The complainant states “It claims ‘therapeutic higher’ doses – a specific health claim without explicitly referencing what such therapeutic benefits are. It also claims ‘for optimal health and energy’ – something which is un-definable and un-measurable …” here he makes reference to the provisions of Clauses 4.2.2 of Section II (Puffery) and 4.2.3 of Section II (Hyperbole).

These clauses respectively state as follows:

“4.2.2 Puffery

Value judgments, matters of opinion or subjective assessments are permissible provided that:

it is clear what is being expressed is an opinion;
there is no likelihood of the opinion or the way it is expressed, misleading consumers about any aspect of a product or service which is capable of being objectively assessed in the light of generally accepted standards.

The guiding principle is that puffery is true when an expression of opinion, but false when viewed as an expression of fact”.

4.2.3 Hyperbole

Obvious untruths, harmless parody or exaggerations, intended to catch the eye or to amuse, are permissible provided that they are clearly to be seen as humorous or hyperbolic and are not likely to be understood as making literal claims for the advertised product”.

By the complainant’s own submissions, the claims or attributes complained of are “… un-definable and un-measurable …”, meaning that they are incapable of being objectively assessed and would not likely be interpreted as more than an obvious exaggeration. This would appear to suggest that these references fall within the ambit of what the Code permits.

Unfortunately, the complainant has not articulated this point clearly, and other than suggesting that the claims in question are possibly puffery or hyperbole, he has not explained on what basis this is problematic. The Directorate can therefore not make a finding in this regard.

While it is noted that the majority of the respondent’s procedural and jurisdictional 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.

His complaint does not suggest that he has looked for, but was unable to find any evidence, or that he the evidence available is unsound or inaccurate. He simply states that “The advert offers no evidence for the ‘therapeutic’ claims made for the product ‘for optimal health …”, and that the claims require substantiation.

In the absence of any compelling reason why the complainant expects the respondent to include its evidence in the actual advertising, there is no reason for the Directorate to expect this. Clause 4.1 of Section II does require advertisers to hold adequate substantiation for their claims, but there is no requirement to provide such substantiation in the actual advertising.

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 (refer Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010), for more detailed explanation), and effectively means that the complaint in relation to substantiation must fail.

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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