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 Control / K Charleston / 19748|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
07 Jan 2013
Mr Charleston lodged a consumer complaint against the product label for the respondent’s “STRESS DAMAGE CONTROLTM” product as seen, inter alia, in Dischem stores.
The labelling contains the respondent’s logo and claims that the product “Protects the heart and brain from stress damage” and that it “improves stress-coping ability”.
Under the heading “WHY SOLAL STRESS DAMAGE CONTROLTM” it states, inter alia, “Proprietary formulation with optimum levels” and “Effective: standardised extract – 3 times more effective than most other Rhodiola containing products”.
The complainant submitted that the label clearly suggests that the product protects the heart and brain from stress damage. As indicated in prior Directorate rulings, product-specific substantiation is required, particularly given that this product claims to be a proprietary formulation. He also alleged that the superiority claim “… 3 times more effective than most other Rodiola containing products” is unsubstantiated.
He adds that the label provides no evidence for the claims made, that the claims have little scientific basis and require substantiation.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE In light of the complaint the Directorate considered Clause 4.1 of Section II to be applicable.
Fluxmans attorneys, on behalf of the respondent, argued that the complainant is not a bona fide consumer, but rather a competitor, and that the complaint is vexatious and prima facie without merit.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The standing and nature of the complainant has been addressed in another ruling under reference Solal Stress Damage Control / K Charleston / 19746 (22 March 2012), and as such need not be reconsidered here, save to mention that the Directorate is satisfied that there is currently no reason to regard the complainant as a competitor complainant.
Without commenting on the validity of the claims at issue, 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 …”
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 the evidence available is unsound or inaccurate.
In fact, the complaint amounts to no more than a mere allegation. This does not accord with the requirements of the Code and contrary the principles of natural justice (see Nature’s Choice Products / Mc Cain Foods / 16283 (12 November 2010) for a detailed explanation).
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.