Posted 08 August 2012
A consumer lodged a consumer complaint against the Vital’s’s print advertisement appearing in the “Rooi Rose” magazine, promoting its Anti-Ageing Blueberry and Pine Bark Extract. The advertisement is headed “Jeugdige vel in ‘n japtrap” (Youthful skin in a flash) and also contains an image of the product’s packaging with the claims “Vital ANTI AGEING…” and “FOR YOUTHFUL RADIANCE”. The complainant submitted that the name of the product and the claims made on its packaging are misleading and unsubstantiated as they imply that it is possible to acquire such result, whereas there is no evidence that such results are humanly possible. The complainant made the point that not even the research found on the Natural Medicines Comprehensive Database supports the claims made. The ASA agreed, the evidence was too thin.
| Vital Anti-Ageing Extract / HA Steinman / 19447|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Vital Health Foods (Pty) Ltd Respondent
06 Aug 2012
Dr Steinman lodged a consumer complaint against the respondent’s print advertisement appearing in the “Rooi Rose” magazine, promoting its Anti-Ageing Blueberry and Pine Bark Extract.
The advertisement is headed “Jeugdige vel in ‘n japtrap” (Youthful skin in a flash) and also contains an image of the product’s packaging with the claims “Vital ANTI AGEING…” and “FOR YOUTHFUL RADIANCE”.
The complainant submitted that the name of the product and the claims made on its packaging are misleading and unsubstantiated as they imply that it is possible to acquire such result, whereas there is no evidence that such results are humanly possible. The complainant made the point that not even the research found on the Natural Medicines Comprehensive Database supports the claims made.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) of the Code as relevant.
The respondent submitted, inter alia, that it would not publish the advertisement containing the claim “Jeugdige vel in ‘n japtrap” claim again.
It explained that the product is formulated with ingredients that have been researched for their effects on skin, and characteristics of the skin that is affected by the ageing process. The claims made regarding the product are based on literature discussing trials which have been performed on the active ingredients or similar products.
The respondent also attached the following documents:
A document without a letterhead, titled “Attachment 3” and “Dermatological Properties of Pinus Pinaster/ Pinus maritime (Pycnogenol)”. The document appears to contain information on this ingredient, and refers to several authors.
A document without a letterhead titled PYCNOGEL but with, inter alia, the descriptor “Horphag Research” at the bottom of each page.
A copy of an article published by Taylor & Francis Health sciences in the Journal of Dermatological Treatment (2004) titled “Supplementation with Evelle® improves skin smoothness and elasticity in a double-blind, placebo-controlled study with 62 women”.
An abstract of an article titled “Supplementation with pine bark extract rich in polyphenols increases plasma antioxidant capacity and alters the plasma lipoprotein profile”.
An abstract of an article titled “Antioxidant activity and inhibition of matrix metalloproteinases by metabolites of maritime pine bark extract (pycnogenol)”
An abstract of an article titled “Rapid relief of signs/symptoms in chronic venous microangiopathy with pycnogenol: a prospective, controlled study”
An abstract of an article titled “Solar ultraviolet-induced erythema in human skin and nuclear factor-kppa-B-dependent gene expression in keratinocytes are modulated by a French maritime pine bark extract”
An abstract of an article titled “Treatment of melasma with pycnogenol”.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking is accepted without considering the merits of the matter.
The respondent submitted that it will not publish the advertisement containing the claim “Jeugdige vel in ‘n japtrap” again. The respondent’s undertaking appears to address the complainants’ concerns insofar as this particular claim is concerned. There is, accordingly, no need for the Directorate to consider the claim.
The undertaking is accepted on condition that the claim “Jeugdige vel in ‘n Japtrap” is not used again in future in its current format in future.
The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively require it to ensure compliance with this undertaking across all media irrespective of whether or not the complainant took issue with that specific media.
Clause 4.1 of Section II specifies that advertisers must hold in their possession acceptable proof that either emanates from, or was evaluated by an entity that is regarded as an independent and credible expert in the field to which the claims relate. It is also trite that substantiation should relate to the product being advertised, when consumed at the recommended dose, as this is ultimately what the consumer purchases and how it is applied.
The complainant effectively asked for substantiation of the claim that the respondent’s product has “Anti-ageing” properties and that it will also affect “YOUTHFUL RADIANCE”. Put simply, the question is whether or not the respondent’s product, as one would purchase it in-store, would deliver on the claimed results.
Clause 4.1 of Section II of the Code requires advertisers to hold satisfactory documentary evidence of any direct or implied claims made. It stipulates that such evidence must emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate.
The respondent effectively provided the Directorate with literature relating to ingredients contained in the product. It did not, however, provide any opinion from a credible and independent expert in the field to clarify whether or not the findings of the relevant research can be extrapolated and applied to the respondent’s product.
In Aquafresh / Colgate-Palmolive / 17956 (30 November 2011), the Advertising Industry Tribunal (the AIT) considered an appeal focussed on whether or not the Directorate was correct in not accepting substantiation in the absence of independent verification even when published research was relied on. The AIT, having considered the material and the arguments from the parties, ruled as follows:
“After considering the written appeal documents and listening to the arguments presented, the AIT found that it was in no better position than the Directorate was. The independence of the studies from which abstracts or summaries had been taken was not questioned but there was no acceptable independent expert evidence submitted linking these to the product or the product claims”.
Given this, the Directorate is in no position to assume that the studies relied on by the respondent automatically justify the claims made for this product.
Based on this, the substantiation provided does not satisfy the requirements of Clause 4.1 of Section II of the Code and is therefore not accepted at this time.
Accordingly, the respondent is required to:
withdraw the references to “ANTI AGEING” and “FOR YOUTHFUL RADIANCE” in their current format;
action the process to withdraw the said claims with immediate effect on receipt of the ruling;
complete the withdrawal of the said claims within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
refrain from using the said claims again in their current format unless new substantiation has been submitted, evaluated, and accepted by way of a subsequent Directorate ruling.
This aspect of the complaint is upheld, and the respondent’s attention is specifically drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires offending claims to be removed from any media in which they appear.
|This is the conditions, and the effectiveness therefor, that Natural Medicines Comprehensive Database has for Pinus Pinaster/ Pinus maritime (Pycnogenol).|
Note, nothing for anti-aging.