Solal’s “Naturally Sweet” claims, dismissed again by ASA.

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Posted 23 September 2011

In this long-running saga, following the Sugar Association's complaint to the ASA that Solal's claims in its  advertisements for its “Naturally Sweet” and “Stevia Sweet” products were misleading, Solal again appealed the ASA's decision in favour of the Sugar Association. The ASA has ruled against Solal's new appeal. 

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

20 Sep 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5746

BACKGROUND
On 5 May 2011, the ASA Directorate held that the following claims made by the respondent in an advertisement for its “Naturally Sweet” and “Stevia Sweet” products were, inter alia, unsubstantiated and in breach of Clause 4.1 of Section II:

“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”; and

“Healthy alternative to sugar …”

The Directorate also held that these claims were dishonest, misleading and disparaging and that they were therefore also in breach of Clauses 2, 4.2.1, 6 and 7 of Section II of the Code.

SUBSEQUENT TO THE RULING
Attorneys Fluxmans Inc, on behalf of the respondent, submitted a letter dated 28 June 2011 with annexures to the ASA for consideration in terms of Clause 4.1.7 of Section II. The annexures to the letter included two letters from Mr Rael Koping, a Registered Dietician, as well as a bundle of documents collectively referred to as Annexure “E”.

On 5 August 2011, and again on behalf of the respondent, Fluxmans Inc submitted a further letter with annexures for consideration in terms of Clause 4.1.7 of Section II. The annexures included letters from Mr Koping, Dr Bruce Hoffman, Dr Neil Burman and Professor Sarel F. Malan.

The respondent’s evidence will be dealt with in more detail below.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the previous Directorate ruling and the respondent’s new substantiation, Clause 4.1 of Section II (Substantiation) is relevant. However, should the Directorate hold that the respondent’s new evidence substantiates its claims, the Directorate will have to consider whether the claims are nonetheless still in breach of the following clauses of the Code:

• Section II, Clause 2 – Honesty

• Section II, Clause 4.2.1 – Misleading claims

• Section II, Clause 4.2.5 – Statistics and scientific information

• Section II, Clause 6 – Disparagement

• Section II, Clause 7 – Comparative advertising

COMPLAINANT’S COMMENTS ON NEW SUBSTANTIATION
In accordance with procedure, the complainant was afforded an opportunity to comment on the independence, credibility and expertise of the individuals who the respondent submitted were experts.

The complainant’s comments will be dealt with in more detail below.

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

Clause 4.1.7 of Section II provides that the Directorate may consider new substantiation submitted after a ruling has been made by the ASA rejecting substantiation or upholding a complaint based on substantiation.

The complainant submitted, in essence, that the new substantiation filed on 5 August 2011 should not be considered by the ASA because new substantiation can only be submitted after a ruling arising from an original complaint, and because the 5 August 2011 filing of new substantiation followed a Directorate ruling of 27 July 2011 which dealt with the new substantiation filed on 28 June 2011.

Although the complainant’s argument is noted, the Directorate does not deem it necessary to make a ruling on the argument at this time, and will assume, for the purposes of this ruling, that it can consider the new substantiation filed on 5 August 2011.

The Directorate’s previous decision on the status of Mr Rael Koping
The respondent argued that Mr Koping was previously accepted as an independent and credible expert by the ASA.

The Directorate is not, however, bound by its previous decision for the following reasons:

Subsequent to the Directorate ruling in Solal Technologies / SASA / 13733 (17 May 2010), the Advertising Industry Tribunal (“AIT”) issued its ruling in Lifebuoy / Dettol / 14813 (27 August 2010). The AIT ruled that the Directorate is required to apply its mind to a matter and any substantiation submitted to satisfy itself that there was sufficient, credible evidence supporting the claims. In Solal Technologies / SASA / 13733 (17 May 2010), Mr Koping’s letter was accepted as substantiation without the Directorate having any regard to the evidence on which his letter was based. In keeping with the precedent established in the Lifebuoy ruling, this can no longer suffice;

The advertiser in the matter of Solal Technologies / SASA / 13733 (17 May 2010) was Solal Technologies Fine Pharmaceuticals (Pty) Ltd. The advertiser in the present matter is Solal Technologies (Pty) Ltd. The respondent has admitted that these are separate legal entities, and this was recorded in the Directorate’s earlier ruling of 5 May 2011 in the present matter. The Directorate held that “any substantiation previously accepted in relation to Solal Technologies Fine Pharmaceuticals (Pty) Ltd would not apply to advertising by Solal Technologies (Pty) Ltd.” This ruling has not been appealed or overturned and is still binding.

“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”
The Directorate notes that Clause 4.1.4 of Section II requires that documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.

In Blossom Canola Range / Unilever / 16529 (22 November 2010), the Directorate held, inter alia:

“The claim in question relates to reducing the risk of developing cancer. Although Ms Pentz-Kluyts may be an expert when it comes to nutrition, there is nothing before the Directorate to show that she is also an expert in matters relating to cancer. Accordingly, the Directorate cannot accept her opinion as support for claims that make reference to reducing the risk of cancer.”

The claim in the present matter relates to the fields of immunology and oncology, and Clause 4.1.4 of Section II therefore requires that the claim be verified by an independent and credible expert in immunology and oncology.

The Directorate notes that Mr Rael Koping, Dr Bruce Hoffman, Dr Neil Burman and Prof Sarel Malan do not appear to be experts in immunology or oncology. Accordingly, they are not experts in the particular field to which the claims relate. In light of this, they do not meet the criteria in Clause 4.1.4 of Section II, and the Directorate cannot accept their opinions as evidence that sugar excess can suppress your immune system and increase the risk of developing cancer.

In addition, the abstracts submitted by the respondent in support of this claim were all published before 2008, except for one which was published in 2010. However, this latter article was a review of evidence from 1995 to 2006. It is therefore also unsubstantiated that “research conducted in 2008 and 2009 has shown” what the respondent claims.

The claim, “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”, therefore remains unsubstantiated and in breach of Clause 4.1 of Section II, as well as Clauses 2, 4.2.1, 6 and 7 of Section II.

“a diet high in sugar can cause…diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”

Diabetes is a disorder in which a lack of the hormone insulin results in a failure to absorb sugar and starch properly. The respondent’s claim therefore appears to relate to the field of endocrinology, and accordingly requires verification from an independent and credible expert in endocrinology.

The Directorate notes that Mr Rael Koping, Dr Bruce Hoffman, Dr Neil Burman and Prof Sarel Malan do not appear to be experts in endocrinology. Accordingly, they are not experts in the particular field to which the claims relate. They do not, therefore, meet the criteria in Clause 4.1.4 of Section II, and the Directorate cannot accept their opinions as evidence that a diet high in sugar can cause diabetes and sugar-shock.

The claim, “a diet high in sugar can cause…diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”, therefore remains unsubstantiated and in breach of Clause 4.1 of Section II, as well as Clauses 2, 4.2.1, 6 and 7 of Section II.

“a diet high in sugar can cause weight-gain”
Given that this claim relates to “weight-gain”, and not to a specific medical condition such as obesity, the Directorate is of the view that the relevant field to which the claim relates is dietetics. Accordingly, the claim must be verified by an independent and credible expert in the field of dietetics.

Of the individuals providing support for the respondent’s claims, only Mr Rael Koping appears to be an expert in dietetics, as he is a registered dietician who appears to have almost two decades of experience in nutritional counselling and food supplement manufacture/consultancy. The complainant did not argue that Mr Koping is not an expert in dietetics.

The other individuals do not appear to be experts in dietetics, and their opinions on this claim can therefore not be accepted as substantiation in terms of Clause 4.1.4 of Section II.

Mr Koping submitted, in essence, that his previous submissions in the matter of Solal Technologies / SASA / 13733 should be considered again as the fact that different legal entities were involved in the two matters does not alter the complaint, the wording of the advertisement or the documentation provided to him by the respondent.

With regard to Mr Koping’s original opinion, the Directorate notes that he submitted as follows with regard to the claim “a diet high in sugar can cause weight-gain”:

“Six references were provided in support of this claim, and all proved valid. Five of the six were printed in reputable medical journals, and one was a submission to the World Health Organization motivating changes in government policy. I would consider all of the researchers credible, with 5 of the six holding mainstream views. Four papers were epidemiological/ cohort studies, while two were review articles. Four of the six references support the claim that ‘a diet high in sugar can cause weight gain’. The claim is thus substantiated.”

In Lifebuoy / Dettol / 14813 (27 August 2010), the AIT held, inter alia:

“While we accept and indeed agree that because the Directorate (or any other ASA body for that matter) invariably may not or will not have the technical expertise to evaluate technical or scientific documentary evidence, it will often be required to rely, if not heavily, upon any expert views or opinions furnished, this does not mean that the Directorate may relinquish its responsibility to ensure that sufficient documentary substantiation in fact exists to any such expert. It is accordingly required, as would any other administrative body, or a court of law, in a similar position, to assess any expert view proffered and satisfy itself as to the adequacy, at the very least, of the expert view” (our emphasis).

The respondent submitted Mr Koping’s letters together with its letter of 28 June 2011 and a bundle of documents collectively referred to as Annexure “E”, and submitted that Mr Koping evaluated the document evidence attached as Annexure “E” and confirmed that that evidence substantiates the respondent’s claims.

Looking at Annexure “E”, the first discrepancy between Mr Koping’s letter and the evidence now submitted by the respondent is that there are only four, as opposed to six, articles referenced in Annexure “E” to the claim that “a diet high in sugar can cause weight-gain”. Mr Koping’s submissions also refer to a “submission to the World Health Organization”, which does not appear to be included in Annexure “E”. In addition, the references in Annexure “E” are merely abstracts from the published articles, which at least begs the question how Mr Koping was able to review and evaluate the studies when he only had the abstracts from the articles.

It is also significant that Mr Koping specifically states that four of the six references support the respondent’s claim. What he does not say is why, despite the fact that two of the references apparently do not support the respondent’s claim, the claim is nonetheless substantiated. It appears to the Directorate that this is significant, and that the evidence in support of the respondent’s claim does not unequivocally verify the claim.

In light of the above, the Directorate cannot accept Mr Koping’s letter as substantiation for the claim “a diet high in sugar can cause weight-gain”. Accordingly, the claim remains unsubstantiated and in breach of Clause 4.1 of Section II, as well as Clauses 2, 4.2.1, 6 and 7 of Section II.

“Healthy alternatives to sugar…Naturally Sweet and Stevia Sweet”
The Directorate notes that the claim is made for the respondent’s products, Naturally Sweet and Stevia Sweet. However, the evidence submitted by the respondent relates to the substances sucralose and stevioside. It appears from Mr Koping’s latest letter dated 2 August 2011 that sucralose and stevioside are the active ingredients in the respondent’s two products.

Accordingly, it appears that the respondent has submitted ingredient-specific literature in support of claims made for the product, not product-specific literature. It is trite that the Directorate cannot accept ingredient based substantiation as adequate for an entire product (see, for a recent example, the ASA Directorate ruling in Slimbetti Fibre Slim / HA Steinman / 18208 (6 September 2011)).

Accordingly, the Directorate cannot accept the respondent’s evidence as substantiation for the claim “Healthy alternatives to sugar…Naturally Sweet and Stevia Sweet”. The claim therefore remains unsubstantiated and in breach of Clause 4.1 of Section II, as well as Clauses 2, 4.2.1, 6 and 7 of Section II.

The respondent’s new substantiation is accordingly rejected and the ASA Directorate ruling of 5 May 2011 remains binding on the respondent.

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