Posted 05 August 2013
This ASA appeal ruling, in the favour of the Sugar Association of South Africa’s versus Solal’s claim that ‘For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock’. It is noteworthy in that the dissenting ASA panel member claimed that “ a diet high in sugar can cause weight-gain and diabetes, any medical doctor will agree that this is the case based on current medical opinion and research“.
Actually uninformed doctors may believe this; but an educated doctor will evaluate the evidence and conclude differently. For example, a puzzle includes the fact that sugar consumption has actually been decreasing for the past 14 years, during which time type 2 diabetes has continued its rise. To read how pseudoscientific Solal’s science is, read this posting and this article.
RULING OF THE ADVERTISING INDUSTRY TRIBUNAL In the matter between:
SOLAL TECHNOLOGIES (PTY) LTD APPELLANT
SOUTH AFRICAN SUGAR ASSOCIATION RESPONDENT
SOLAL TECHNOLOGIES / SASA / 17484
This matter has a complicated history of new substantiation being sought to be filed, a plethora of legal points on procedure being raised which did not always take the matter any further and interim applications to the Chair of the Appeals Committee. Accordingly, amidst this obfuscation, it is deemed useful to reproduce below in its entirety the ruling of the Directorate dated 20 September 2011, which is being appealed, for reference and clarity:
DIRECTORATE’S RULING DATED 20 SEPTEMBER 2011
“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 – HonestySection II, Clause 4.2.1 – Misleading claimsSection II, Clause 4.2.5 – Statistics and scientific information|
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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.
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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.’
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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 Real 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.
Page 6 of 15
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 Real 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.’
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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.
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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.”
The appellant appealed against the above ruling of the Directorate. Although the notice of appeal was substantial incorporating 44 grounds of appeal there was a fair amount of repetition and the grounds of appeal could be distilled down to the following 6 grounds
The rejection of Mr Koping as a credible and independent expert.
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The failure of the Directorate to consider the documentary evidence or to assess the source from which it emanated. In addition the Directorate should have called for further documentation.
The rejection of Drs Burman, Hoffman and Professor Malan as experts in the particular fields in respect of which the claims relate.
The Directorate failed to apply the audi alteram partem rule.
The Directorate erred in concluding that the documentary evidence was not product specific.
The Directorate erred in concluding that the previous substantiation by M Koping was advertiser specific as opposed to claim or product specific.
In essence, although the Appellant filed voluminous documentation, the Appellants grounds of appeal centred around the fact that their experts Mr Koping, Drs Burman and Hoffman and Professor Malan should have been accepted as experts as required in Clause 4.1.5 of section II of the Code and accordingly the further substantiation should have been accepted.
The Respondent also filed a substantial response to the appeal, the net effect of which was to concur with the directorate.
The Appellant was represented by Messrs Levin, Snoyman and Murphy. Mr Shoot (Fluxman’s) observed.
Mr van der Merwe, Ms Mthuli and Ms Seetal represented the Respondent.
The Appellant commenced the proceedings by asking if the Directorate had briefed the Tribunal prior to the hearing. The Chair answered in the affirmative. The Appellant then asked if the Respondent had been present for the briefing to which the response was no. The Appellant asked what was said at the briefing to which the Chair replied it was standard practice for the Directorate to give a short factual briefing. Although all the tribunal members had read the papers the Directorate confirmed the crux of the appeal and what sections of the Code were relevant: the merits had not been discussed at all.
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The Appellant presented its argument which did not deviate from its grounds of appeal. In its own words, “this appeal turns on a relatively narrow ambit – did Solal provide the Directorate with credible independent expert documentary evidence to substantiate its claims that too much sugar can have the effects which Solal claims it can?”
The Appellant again referred to the large amount of documentary evidence that it had submitted and reiterated why, in its view, its experts should be accepted by the ASA as such. Mr Murphy, a registered Pharmacist, gave evidence as to why the body of evidence submitted should be accepted as substantiation.
The Appellant made the point that the Respondent had not put up expert evidence to show that an excess of sugar cannot cause weight gain, diabetes or sugar shock, or that excess sugar cannot increase the risk of cancer or that suraclose and stevioside are not healthier alternatives to sugar.
The Appellant asked for the appeal to be upheld with costs. It alleged there can be no undue prejudice to the Respondent who would then be in a position to take the matter to arbitration.
The Respondents submissions followed the points raised in its response to the Notice of Appeal which effectively was to concur with the Directorate.
The Respondent made the point that it is very difficult to do studies that will induce the alleged ill effects of sugar in human subjects. Accordingly the full body of evidence available must be assessed and evaluated by an expert acceptable to the ASA. This the Appellant had not done. The Respondent tried to introduce oral evidence of a recent study that they regarded as pertinent but the Appellant objected that this was new evidence being presented for the first time at the Appeal hearing. The chair upheld the objection and ruled that this study was not before the tribunal and would not be considered.
In regard to the audi alteram partem rule the Respondent pointed out that the ASA had advised the Appellant that it is vested with discretion that is could use as it deems fit. It is usual practice for the ASA to send the substantiation to the other party and not provide the advertiser with an opportunity to comment on the other party’s comments, otherwise the matter could go on in perpetuity.
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The Respondent submitted the Appellant’s appeal was without merit and requested that it be dismissed with costs.
Finally, the Appellant tried to introduce a CD disc which it said contained other evidence in support of its arguments. The chair held that this evidence was late, not before the Tribunal and could not be taken into consideration.
The Appellant then asked to sit in on the Tribunal’s deliberations. The chair refused on the grounds that the deliberations were between the Tribunal members only – drawing the parallel that the Appellant would not expect to sit in on deliberations between a judge and his/her assessors. The Appellant then asked if the Directorate sat in on the discussions. When told yes but purely as observers who took no part whatsoever in the proceedings, the Appellant objected strenuously, leading to a member of the Tribunal saying he took offence to the Appellant inferring that the Tribunal was not independent or impartial. Another member of the Tribunal advised the Appellant that if it had issues with the ASA’s procedures it should take these up with the appropriate forum.
MINORITY RULING OF THE ADVERTISING INDUSTRY TRIBUNAL
The AIT is called on to consider whether the Directorate incorrectly held that the respondent’s claims where unsubstantiated.
|“Too much sugar … can cause cancer”.“A diet high in sugar can cause weight-gain”“A diet high in sugar can cause …. diabetes”“A diet high in sugar can cause …. sugar shock”“Sugar excess can suppress your immune system and increase the risk ofdeveloping cancer”“Healthy alternative to sugar”|
This matter was brought before this committee on the 9th of November 2011.
Before dealing with the merits of this matter it should be recorded that there have been allegations of procedural irregularities with regards the deliberations and voting of the AIT in this matter. An investigation into these alleged irregularities should be duly performed to refute these allegations or consider their impact on the ruling of this matter.
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With regards the merits of the matter. It needs to be recorded that there is a dissenting vote (minority) on a number of important issues.
Independent, credible, and expert documentary evidence and persons
Some members of the committee where misguided in their assertion that the documentary evidence substantiation needs to be provided by an independent party and that Solal should not be permitted to provide “one-sided” studies showing substantiation. In this matter Solal compiled and presented many peer-review journals and even a bulletin of the World Health Organisation (WHO). The evidence did in fact emanate from very independent, credible, and expert entities. It was however compiled and presented by Solal.
“4.1.4 Documentary evidence, other than survey data, shall emanate from or be evaluated by a person/entity, which is independent, credible, and an expert in the particular field to which the claims relate and be acceptable to the ASA.”
It needs to be stressed that SASA did not attempt to refute these studies and expert opinion. If these or any other “unsubstantiated” claims were in fact lies, surely SASA in this case could have brought some evidence or expert opinion to show the contrary.
In the Lifebuoy ruling “the Advertising Industry Tribunal (the AIT) ruled that the Directorate [and presumably the AIT itself] is requires to apply its mind to a matter and any substantiation submitted to satisfy itself that there was sufficient, credible evidence to support the claims.”
While this precedent does take care of any experts “rubber stamping” any claims. It also makes it entirely apparent that the Directorate and AIT is required to deal with any substantiation on the understanding that it is written in “plain English”. They are required to apply their own minds.
The ASA is “entitled” to call for expert persons. This is not required in this matter, as vast majority of the documentary evidence provided is of the language that any moderately educated person could read and comprehend. “The documentary evidence is of such a nature that assistance is required” does not apply in this matter.
“4.1.5 Before making a ruling on documentary evidence, the ASA will be entitled to:
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126.96.36.199 Require the advertiser to engage the services of a person/entity which is independent, credible, and an expert in the particular field to which the claims relate, to confirm the accuracy of the claims, when, at the discretion of the ASA, the documentary evidence is of such a nature that assistance is required to confirm the accuracy of the claims. The reasonable fees incurred in relation thereto will be at the cost of the advertiser, and the advertiser will be required to deposit the fee with the ASA beforehand.”
The wholesale exclusion of expert opinion is unacceptable. This matter of having lay people assessing the technical skills or professional acumen of health professional requires serious attention.
There is also the question that experts themselves would have differing opinions as to what type of expert is entitled to express an opinion on a particular issue. For example as a piece of research, when a member of the AIT asked a leading oncologist as to who would give the opinion on whether excessive use of sugar might be a cause of cancer, he replied that it would be an oncologist. However, when asked if an enzyme specialist or any other dietary specialist could also consider themselves to be experts in these matters, he agreed that they would. The ASA Committee cannot set itself up as the authority as to what medical scientific expert will be acceptable and what expert will not be acceptable. Such a matter would have to be referred to an independent authority for guidance.
This matter was deliberate extensively. However the AIT did not apply its mind to the individual pieces of this matter. The mandate was approached in a broad “did the Directorate err in its decision” and not on the individual merits. If the AIT was asked to reflect (and apply its mind) to the components separately, the AIT would have been forced to consider the evidence at hand and come to an entire different conclusion. The AIT should have considered the following separately;
|“Too much sugar … can cause cancer”.“A diet high in sugar can cause weight-gain”“A diet high in sugar can cause …. diabetes”“A diet high in sugar can cause …. sugar shock”“Sugar excess can suppress your immune system and increase the risk of developing cancer”“Healthy alternative to sugar”|
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When the above points are taken individually, in particular that a diet high in sugar can cause weight-gain and diabetes, any medical doctor will agree that this is the case based on current medical opinion and research. There are hundreds if not thousands of expert opinion articles on this matter on the internet from highly credible sources and in medical journals, and for the Tribunal in its deliberations to have ignored common wisdom on such important health issues, does not do any justice to the credibility of the Tribunal. The public good and public health should be the overriding determinator.
As such, the minority of the AIT would uphold the appeal and set aside the Directorate’s ruling.
MAJORITY RULING OF AIT
Having considered the papers before it and the argument presented, the majority concluded that the evidence presented in substantiation had not emanated from or been evaluated by a person/entity, which is independent, credible and an expert in the particular field to which the claims relate and be acceptable to the ASA.
The majority concurred with the Directorate’s reasoning in not accepting Mr Kopel, Drs Burman and Hoffman and Professor Malan. These reasons are given above in detail and will not be repeated word for word. However, they should be taken as incorporated in the Ruling of the Tribunal. In addition, Mr Murphy, who purported to give expert evidence at the hearing is employed by the Appellant and cannot be said to be independent.
Relating to the Appellant’s allegation that the Directorate should have asked for further evidence from an acceptable expert if it was not satisfied, attention is drawn to clause 4.1.5 which states “before making a ruling on documentary evidence the ASA will be entitled (our emphasis) to require the advertiser to engage the services of a person/entity which is independent, credible and an expert in the particular field …” Accordingly the ASA may but is not obliged to call for the appointment of a further expert. The onus is on the Appellant to ensure that its case is properly prepared and presented.
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The Tribunal concurred with the Directorate and the comments made by the Chair of the Appeal Committee relating to audi alteram partem and felt there was no merit to this ground of appeal
It may also be apposite to refer to an interim ruling of the Chair of the Appeals committee who noted that he felt that the Directorate had been lenient in allowing and adjudicating on the further substantiation filed.
Accordingly the appeal fails.
The Directorate did not find the Appellants experts to be independent as acceptable to the ASA for the reasons given by it above. The Appellant at no time sought to rectify these shortcomings and the Tribunal concurs with the Directorate.
It is not sufficient to present bundles of excerpts from scientific journals. This information must be evaluated by an expert acceptable to the ASA who, inter alia, effectively draws it together, giving an opinion on the content (and context if there is an additional body of literature available in the public domain) as well as evaluating the methodology used.
Accordingly, the appeal is dismissed and the decision of the Directorate dated 20 September 2011 is upheld.
No order was made as to costs.
HILARY MILLWARD DATE
ACTING CHAIRPERSON OF THE
ADVERTISING INDUSTRY TRIBUNAL