Churches have the right to recruit people, evangelise and espouse their beliefs. But they may not deceive people into making dangerous health choices.

Christ Embassy's programme showed a 17-year old girl with heart disease making a miraculous recovery as soon as the church's proprietor, Pastor Chris Oyakhilome, lays hands on her. The message conveyed throughout the programme is that Christ Embassy's Healing School is the place to get faith-healed. 

The ASA directorate originally dismissed my complaint (on behalf of TAC), saying that it was a programme not an advert. We appealed. On appeal, the Advertising Standards Committee (ASC) ruled that it was an advert and ordered it to be withdrawn. Christ Embassy then appealed and the matter was heard before the ASA's Final Appeal Committee, headed by Judge Mervyn King. Today that committee ordered that the "advertisement in its current format must be withdrawn." The words "current format" are open to interpretation, but the Committee makes it clear that it is quite far-reaching. 

This is an important ruling that protects patients. It also answers important questions about the advertising code. The ASC ruling that Christ Embassy appealed found that the advert must be withdrawn because it makes unsubstantiated claims and is also in breach of Appendix F of the Advertising Code. In a nutshell, Appendix F says adverts should not should not make or offer products, treatments or advice for a whole range of medical conditions, including  heart disease, "unless recommendations accord with a full product registration by the Medicines Control Council." Today's ruling by the Final Appeal Committee upheld these findings by the ASC.

Christ Embassy's lawyer's main arguments were:

• The Christ Embassy programme was not an advert. It was an advertiser-sponsored programme. That it was 22 minutes long made it too long to be an advert.
• Even if it was an advert, ordering its withdrawal would breach the right to freedom of religion.
• Faith-healing is not a product registrable with the Medicines Control Council and so it was not applicable in this case. If it was, then the Medicines Control Council had gone beyond its mandate in negotiating Appendix F with the Advertising Standards Authority.

The Committee rejected these arguments.

It's an advert

The Committee found that Christ Embassy programme is an advert. An advert is any visual or aural communication promoting the sale or use of a good or service. The length of the advert is irrelevant. The Christ Embassy programme promoted its healing school as a place where people could receive miracles. Therefore it's an advert. That Christ Embassy paid e.tv R2.6 million to run these programmes every Sunday for a year lends weight to the fact that it's an advert. So does the fact that e.tv called it an advertorial in correspondence.

Ordering its withdrawal does not infringe Christ Embassy's religious rights

The Committee explained that Constitutional rights have to be balanced against each other and decisions must sometimes limit one right in connection with another, so long as those limitations are reasonable and justifiable. The Committee went to great pains to explain that they were not infringing Christ Embassy's religious rights:

We expressly record that this ruling in no way impinges on or is intended to restrict [Christ Embassy's] right to entertain its religious beliefs, to announce its religious beliefs or to manifest such beliefs by worship or practice.

The ruling also explains that the Advertising Code constitutes a contract between advertisers and their audience. By placing an advert on e.tv Christ Embassy has entered a contract and it must therefore abide by the provisions of the Advertising Code.

The very useful Appendix F

As explained previously on Quackdown, Appendix F is important because it's a catchall for a complainant when there's a dispute between experts about whether or not an advert's claims are substantiated. Solal Technologies, a serial offender of the Advertising Code, have recently disputed the validity of Appendix F. Consequently the ASA Directorate, which is the first port of call for all ASA complaints, has been unsure about whether it can use Appendix F in its rulings. The ruling in this case  resolves the Appendix F controversy. The dispute is quite technical, but I will try to explain it simply.

Appendix F is, according to the code, owned by the Medicines Control Council (MCC). Christ Embassy's lawyer argued that the contractual provisions of Appendix F "need to be interpreted and applied in accordance with the provisions of the" Medicines Act, which is the act governing the MCC. So for the ASA to make reference to Appendix F in a way that goes beyond the legal mandate of the MCC would be beyond their legal power (ultra vires is the technical term). Since faith-healing is not a registrable product with the MCC, interpreting appendix F to include faith-healing would therefore be ultra vires. Furthermore, under the Medicines Act, the state is supposed to publish regulations on the marketing of medicines and has not done so, therefore the MCC cannot make any pronouncements such as those in Appendix F until those regulations are published.

The Committee said that even if the Christ Embassy lawyer was correct that the provisions of Appendix F were beyond the legal mandate of the MCC, it was irrelevant. The appendix is part of the advertising code and therefore part of the contract that advertisers agree to abide by when they place adverts.

It's important to understand at this point that the ASA is a self-regulating body. The provisions of its code have been agreed to by all the major advertising companies and media houses including e.tv. They have in effect agreed to abide by the provisions of Appendix F; it is not enforced upon them by the state. It therefore does not matter whether the MCC overstepped its mandate when it developed Appendix F.

What this means when you next lodge a complaint against a quack product

From this ruling it is clear that there are two separate provisions in the ASA code that a consumer can easily use use to get an advert that makes unsubstantiated health claims withdrawn. In your complaint, you should say that (1) the advert makes unsubstantiated claims (list what the unsubstantiated claims are) and (2) that it is in breach of Appendix F of the ASA code (first check that the disease it claims to prevent/treat/cure is actually listed in Appendix F).

One aspect of the ASC's ruling was too broad. Its wording could be interpreted to be making an order about future Christ Embassy adverts, which would be beyond what the ASA is legally permitted to do. The Final Appeal Committee's order corrected this problem.

A few weeks ago, Chris Oyakhilome drew a massive crowd to a stadium in Gauteng. He is extremely popular. This ruling is only a tiny dent in his extremely effective marketing.  Churches have the right to recruit people, evangelise and espouse their beliefs. But they may not deceive people into making dangerous health choices.

Thanks to Susannah Cowen, who represented TAC and me, and William Kerfoot of the Legal Resources Centre.