Posted 13 September 2012
Does Solal’s Melatonin Slow release, Herbal Sleep and Magnesium Glycinate work?
A consumer did not think so – laying a complaint with the Advertising Standards Authority arguing that the claims for these products are exaggerated or unproven.
|Melatonin Slow Release / K Charlston / 17971|
Ruling of the : ASA Directorate
In the matter between:
Mr Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent
12 Sep 2012
Mr Charleston lodged a consumer complaint against a Solal print advertisement promoting its “… three natural products [that] help treat some of the underlying causes of insomnia …”
The three products are promoted as follows:
“Herbal SleepTM – to help you fall asleep Contains a combination of natural sedating herbal extracts like valerian, corydalis and passionflower, to gently induce sleep …”
“Melatonin Slow Release – to keep you sleeping all night Melatonin is produced by the body to maintain sleep throughout the night. Melatonin levels decline throughout adulthood. Unlike standard quick release melatonin tablets, a slow release mechanism is useful to help prevent waking a few hours after falling asleep. SOLAL is the only brand of slow release melatonin in South Africa …”
“Magnesium Glycinate – for optimal EEG sleep brain waves Magnesium promotes healthy brain waves during sleep. The glycinate form of magnesium is important because it is better absorbed than other forms and is only available from SOLAL Technologies …”
In addition to this, the words “REDUCED SEX DRIVE”, “HEART ATTACKS”, “DEPRESSION” and “STROKES” appear at the top as part of the image, and the copy states, inter alia, that “… lack of sleep can also cause heart attacks, strokes, memory problems and depression”.
In essence the complainant submitted the implication that the combination of these three products is effective in treating insomnia has no scientific basis and requires substantiation.
In addition, the complainant argued that the references to insomnia, heart attacks and reduced sex drive are in contravention of Appendix F of the Code.
Insofar as the claims made for the different components / products, he argued that the available evidence relating to melatonin suggests that it may possible aid in shortening the time it takes to fall asleep, but there is nothing to show that it has any effect on sleep efficiency, or the percentage of time spent sleeping at night.
Insofar as Magnesium Glycinate is concerned, the claim that it ensures “optimal EEG Sleep brain waves” is patently untrue as there is no such thing as an “optimal EEG Sleep brain wave” and there is no such thing as a “healthy brain wave”.
While the complainant noted that there is, in fact, another company that also claims to sell slow release melatonin (contradicting the advertiser’s claim that it sells the only such product in South Africa, he explained that “I don’t particularly care about this claim – but it points to the level of research and absence of truth in the rest of the advert”. Given this, the Directorate did not consider this aspect of the complaint as relevant.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
Section II, Clause 4.1 – Substantiation (with reference being made to Clause 4.25 of Section I – Scientific substantiation)
Appendix F – References to diseases
Fluxman’s attorneys, acting on behalf of the respondent, argued that the complaint is malicious, vexatious, invalid, and constitutes an abuse of the ASA process.
It submitted certain documents in support of the efficacy claims made, and argued why Appendix F is not valid or constitutional. Insofar as the substantiation is concerned, it relied on an opinion from Professor Sarel F Malan,and Dr Neil D Burman.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Status of the complainant
The respondent has, on numerous occasions, argued that the complainant is vexatious and is complaining in bad faith, constituting an abuse of ASA procedures and processes.
This issue was dealt with extensively in Solal Stress Damage Control / K Charleston / 19746 (22 March 2012), in which the Directorate rejected this argument. The new accusations put forward have not changed the Directorate’s view in this regard. It is also noted that the respondent has not appealed the Directorate’s ruling in the Stress Damage Control matter, and as such this decisions still stands.
Accordingly, the Directorate still at present regards the complaint as a consumer complaint as defined in the Code.
While the contents of and applicability of Appendix F have generated much debate and resulted in, inter alia, rulings on the issue from the Directorate as well as the Advertising Standards Committee and the Final Appeal Committee, this issue has since become moot, as this appendix was effectively deleted from the Code (refer Nycomed-Dona / K Charleston / 20066 (16 August 2012) for a brief explanation.
Accordingly, the concerns raised in relation to the alleged contravention of Appendix F cannot be considered at this time.
Effectively, the complainant raised three points of concern:
The respondent has no proof that its combination of products (i.e. the three products promoted in the advertisement) are effective in treating insomnia;
There is nothing to show that melatonin has any beneficial effect on the percentage of time actually spent sleeping;
The claim that Magnesium Glycinate allows for optimal EEG sleep brain waves is false, as there is no such thing as an “optimal” EEG sleep brain wave or even a “healthy” brain wave.
The evidence relied on by the respondent is in the form of verification from Professor Malan and Dr Burman. It should be noted that the respondent initially submitted all its supporting documentation insisting that it be treated as confidential in terms of Clause 5 of Section I. When the Directorate advised that it would not regard this information as confidential as it was available publicly, it withdrew these submissions, effectively leaving the Directorate with only the two opinions referred to above.
This is problematic in the sense that the Directorate is not able to consider the evidence relied on to satisfy itself that the conclusions reached by the experts are echoed in the evidence (see the ruling of the Advertising Industry Tribunal (the AIT) in Lifebuoy / Dettol / 14813 (27 August 2011) for more detailed explanation).
Effectively, the respondent is now expecting the Directorate to simply believe the say-so of the experts relied on without being able to satisfy itself to the soundness of these opinions. This is not adequate, and the Directorate cannot accept this.
By virtue of this, it is not necessary at this point in time to determine whether or not Dr Burman and/or Prof Malan meet the criteria of independent and credible experts in the field to which the claims relate.
For the above reasons, the following claims are currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code:
“… three natural products [that] help treat some of the underlying causes of insomnia …”
“Melatonin Slow Release – to keep you sleeping all night Melatonin is produced by the body to maintain sleep throughout the night … a slow release mechanism is useful to help prevent waking a few hours after falling asleep”
“Magnesium Glycinate – for optimal EEG sleep brain waves Magnesium promotes healthy brain waves during sleep …”
The respondent is therefore instructed to remove these claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and not use them again in future unless new substantiation has been submitted, evaluated, and a new Directorate ruling issued.
The complaint is partially upheld.