Posted 21 September 2009
Professor Carr appealed the previous ASA ruling in favour of StemEnhance. In 2009, the ASA were not as rigorous with confirming whether an individual was a credible expert. Ms Viviane Ponte substantiated this product. It is my contention that she either lied or is incompetent for there is simply not a single study conducted on humans that confirms the claims for this product.
Stemenhance / J Carr / 12708 (ASC)
Ruling of the : Advertising Standards Committee
In the matter between:
Prof. Johnathan Carr Complainant(s)/Appellant(s)
Stemtech Africa (Pty) Ltd Respondent
21 Sep 2009
At the meeting of the Advertising Standards Committee (“the Committee”) held on Tuesday, 25 August 2009, the Committee considered an appeal against the Advertising Standards Directorate (“the Directorate”) ruling of 7 April 2009.
Professor Carr (the Appellant) lodged a consumer complaint against a Stemtech brochure promoting Stemenhance, which, inter alia, contained the claim “Stem cell enhancers are products that support the natural release of adult stem cells.”
His complaint stated “The claims made by the advertisements that stem cell enhancers are beneficial are false. There is no proven medical benefit of such a product. The claim that stem cell enhancers support stem cells is false”.
In reply the respondent submitted documentation from Ms Viviana Ponte whom they submitted was an independent expert in the matter.
In its ruling the Directorate noted that it was not an expert in this field and therefore has to rely on independent and credible experts to evaluate the substantiation and verify that the claims, as they appear in the advertising, are true. Should the Directorate be satisfied that the expert used meets the criteria of Clause 4.1 of section II, the only remaining question is whether or not the expert confirms the claims disputed.
The Directorate was satisfied that Ms Ponte met the requirements of Clause 4.1.4 of Section II of the Code. She had previously been accepted as an independent credible expert in matters relating to the pharmacological functioning of supplements and there was no evidence before the Directorate to warrant a different approach in this matter.
Ms Ponte confirmed the veracity of the respondent’s claims.
As such the Directorate was satisfied that these claims were substantiated in terms of Clause 4.1 of Section II and accordingly could not be said to be misleading in terms of Clause 4.2.1 of Section II of the Code. The complaint was dismissed.
The complainant appealed the Directorate’s ruling and applied for condonation for the late filing of the appeal. This application for condonation was granted, and the appeal proceeded.
The complainant’s grounds for the appeal were that:
He, as a Professor of neurology, was better qualified to give an opinion on the qualities of the product than a pharmacist (Ms Ponte) and that no other scientific evidence, other than Ms Ponte’s opinion had been given.
The Directorate erred in finding that Ms Ponte was suitably qualified.
The Directorate erred in failing to advise the complainant that he was entitled to provide other expert evidence in support of his claim.
At the appeal hearing the following parties were present
• Professor J Carr – Complainant/Appellant
• L Vryenhoek – Respondent
• V Ponte – External Expert
• A Hoff – Observer
• G Schimmel – Observer
The Appellant gave an overview of stem cell enhancers and the algae that is used but was unable to link it to the product in question.
He did not advance his criticism of the expert, Ms Ponte, and did not provide any independent view that could be taken into account by the committee.
The Respondent submitted that ASA procedure dictates that the advertiser should prove a claim, not that the complainant disprove it. Contradictory evidence properly falls within the ambit of arbitration. Ms Ponte had previously been accepted by the ASA as an expert and there was nothing before the committee to warrant a deviation from this approach.
The Committee found no reason why it should not accept Ms Ponte as a credible, independent expert. In the absence of alternative expert evidence the Committee was not in a position to dispute the evidence of Ms Ponte. The mere fact that the complainant disagrees with the respondent’s expert does not automatically nullify her expertise. Furthermore, the Committee pointed out that in a case such as this where expert opinion is called into question the correct procedure to have followed was that of arbitration. The appellant had declined to follow this procedure. At the very least the appellant should have submitted an independent expert’s opinion to give the Committee something to consider.
Accordingly the appeal was dismissed and the ruling of the Directorate upheld.
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