Solal vs Sugar Association, again! ASA ruling

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Posted 09 September 2011

This ruling is interesting and significant for a number of reasons. 

1. A number of complaints have been laid with the ASA against a number of Solal adverts. In particular, Naturally Sweet. The on-going saga has been posted to DrugInfo before. A number of issues were illustrated, and in particular, Solal and Rene Doms’s belief that the ASA have no jurisdiction over Solal advertising, that the consultants are not legally adequate to make rulings, that the process was flawed, and that the appeal process will be in their favour. As a result of appeal process, the appeal reached the ASA’s Final Appeal Committee (FAC), chaired by Judge Mervyn King, who ruled against Solal complex and convoluted arguments which cleared the ASA to proceed with point 2, below. 

2. A new grouping, the Association for Responsible Health Information and Advertising (ARHIA) headed by Prof Roy Jobson, laid a breach complaint with the ASA against the Solal’s advertisements for Naturally Sweet arguing that the advertising previously ruled against, was still accessible via the Solal website and hence Solal was in breach of the ASA’s previous rulings. The ruling, in favour of ARHIA, is pasted below. 

3. This means that: “In light of this breach, complainant who raised the breach allegation (MR Jobson) is afforded ten (10) working days to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide are appropriate, and if so, which sanctions. After this time, the respondent will be afforded an equal opportunity, after which the Directorate will proceed to consider the question of sanctions in accordance with the Code.” Sanctions imposed against Solal may be mild or severe, depending on the complainant’s recommendation, and on Solal’s previous history with the ASA. Solal may regret having handled the ASA in the way they did. There is a possibility that Solal’s advertising in magazines, print, and other forms of media being severely curtailed, or vetted.

Solal Technologies / SASA / 17484
Ruling of the : ASA Directorate

In the matter between:
South African Sugar Association Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
http://www.asasa.org.za/ResultDetail.aspx?Ruling=5718

07 Sep 2011

BACKGROUND
In Solal Technologies / SASA / 17484 (5 May 2011) the Directorate ruled that the respondent’s claims made in advertising of its “Naturally Sweet” and “Stevia Sweet” products appearing on, inter alia, its website www.solaltech.com were unsubstantiated and by inference misleading, disparaging and dishonest. The claims ruled against were:

“For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”

“More recently, research conducted in 2008 and 2009 has shown that sugar excess can suppress your immune system and increase the risk of developing cancer”.

“Healthy alternative to sugar …”

On 30 June 2011 the Directorate dismissed the breach allegation lodged by South African Sugar Association (SASA) on the basis that the advertising to which the breach allegation related was accessed via cached, or dormant link on the Internet, and not as a result of the respondent actually publishing such advertising.

SUBSEQUENT TO THE RULING OF 30 JUNE 2011
On 12 July 2011, MR Jobson, on behalf of the Association for Responsible Health Information and Advertising (ARHIA) lodged a breach complaint against the respondent’s advertisements that appeared on the respondent’s website www.solaltech.com and also accessed via the following URL links:

http://www.solaltech.com/adverts/april/Pantethine.pdf
http://www.solaltech.com/adverts/aug/Nutritional%20supplements%20to%20help%
20diabetes.PDF.

In essence, the complainant submitted that it was able to access the above URL directly from the respondent’s homepage and not from a search engine which contained the wording related to the product Naturally Sweet. A copy of the relevant advertisement was also submitted along with the breach allegation.

The first advertisement is headed “How to lose fat, reduce sugar cravings and help protect yourself from deadly diabetes”. It promotes four of the respondent’s products for this goal, and states the following in relation to its “Stevia Sweet” product:

“A diet high in sugar can cause weight gain, diabetes, and high blood pressure. Sugar can also cause sugar-lows (tiredness about 1 hour after eating or drinking something sweet) and immune suppression. Sugar excess can also increase the risk of some cancers”.

The second advertisement is headed “Nutritional supplements to help diabetics” and also promotes a total of eight products for this cause. In relation to the respondent’s “Naturally Sweet” product, it contains the following words:

“A diet in sugar can cause insulin resistance, fatigue, immune suppression and increases the risk of some cancers”.

Mr Jobson submitted, inter alia, that both web pages were accessed on 10 July 2011, more than two months after the original adverse ruling. He requested the Directorate to impose the severest possible sanction allowed by Clause 14 of the Procedural Guide.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

RESPONSE
Fluxmans attorneys, on behalf of the respondent, submitted, inter alia, that the latest breach was not in relation to the Naturally Sweet or Stevia advertisements which were originally objected to, but rather in relation to only two sentences of the claims which were obscurely referred to in other advertisements. It submitted, inter alia, that the complainant accessed the “archive” section of its website, which is accessed from, but not directly on the homepage.

It submitted, inter alia, that the respondent had inadvertently retained those advertisements indirectly accessable on its website archive in minimised thumbnail the bona fide and mistaken belief that the two claims were not contained therein.

Upon receipt of the breach complaint it immediately withdrew the two advertisements and subsequently shut down the entire archive section of the website. The respondent submitted, inter alia, there are steps to be taken in order to access these advertisements, such as having to power up the computer, connect to internet, access or connect to a search engine such as for example “Google”, enter the respondent website address, read the home page, locate the section of its website which constitute an archive of historic / non-current advertising material, etc.

The ASA Directorate held in a ruling Biobust / H A Steinman / 3247 (30 March 2009) that the respondent cannot “… be held responsible for search results emanating from Google search” and not “directly via the respondent’s website”. It added that there is no likelihood of anyone seeing the material other than someone like the complainant who actively sought it out and searches for it on Google.

The respondent submitted, inter alia, that the complainant should have utilised the procedure set out in paragraph 1.1 of the Procedural Guide and notified the respondent it would immediately have withdrawn those advertisements.

Under the circumstances, there is no justification for any sanction and that it will be inequitable and pernicious for it to be sanctioned. It is contrary to the substance and the spirit of the Code.

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

The Directorate is only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.

At the outset, it must be noted that the respondent’s analogy and reliance on the Biobust ruling is not appropriate, as the advertising that gave rise to the current dispute was accessed via the respondent’s website, and not as a result of a search on, for example, Google. This is evident not only from the breach complaint, which specifically notes this, but also from the response, which concedes that these were accessed from, but not directly on, its homepage. This means that no search engine was needed as the respondent appears to suggest, and therefore nullifies the relevance of the Biobust ruling.

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. In addition, Clause 15.5 requires a respondent to withdraw all claims / advertising at issue from all media in which they appear, irrespective of whether or not a specific media was referenced by a complainant.

The fact that the claims at issue appeared on different advertisements does not remove the respondent’s obligation to comply with the 5 May 2011 ruling. The claims that gave rise to the breach allegation were also specifically made with relation to the respondent’s “Naturally Sweet” and “Stevia Sweet” products, which were the same products originally considered. Other than some semantic changes, the claims still communicate the same messages as those found to be unsubstantiated in the 5 May 2011 ruling.

While the respondent has now taken steps to amend its website and to remove all offending claims upon receipt of the breach allegation, this action is belated.

Therefore, it is clear that the respondent is in breach of the previous ruling and in contravention of Clause 15 of the Procedural Guide.

The breach allegation is therefore upheld.

In light of this breach, complainant who raised the breach allegation (MR Jobson) is afforded ten (10) working days to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide are appropriate, and if so, which sanctions. After this time, the respondent will be afforded an equal opportunity, after which the Directorate will proceed to consider the question of sanctions in accordance with the Code.

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