Quackbase!

Response number: 86

Responder: ASASA

Date of response: March 22, 2012

Type of response: ASA Directorate Ruling

ASASA rules that claims in a Solal “Stress at work increases the risk of heart attack by 300-600%" advertisement are unsubstantiated.

Claims dealt with in this response

• Claim no 61: Solal Technologies Protects Heart Disease made on 2012-02-14 - Tests are disputed or inconclusive

Description

The ASASA ruling is at:
http://www.asasa.org.za/ResultDetail.aspx?Ruling=6003

Text of the ruling:

Solal Stress Damage Control / K Charleston / 19746

Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Solal Technologies (Pty)Ltd Respondent

22 Mar 2012

Mr Charleston lodged a consumer complaint against one of the respondent’s print advertisements appearing in the Cape Times during February 2012. The advertisement is headed “Stress at work increases the risk of heart attack by 300-600%”. It shows a man and a woman holding boards in front of their faces.

The man’s board contains the words “HEART ATTACK” and “STRESS”, whereas the woman’s board contains the words “PRESSURE” and “DAMAGED BRAIN CELLS”. Below this it states “Research published in the Journal of Epidemiology shows that stress at work can increase the risk of heart attack by 300-600%. In addition, other research shows that the hormones released during times of stress can damage brain cells and hamper your work performance”.

It then promotes the respondent’s “STRESS DAMAGE CONTROL” product under the auspices that it contains “… concentrated herbal extracts of Rhodiola and ashwagandha that help prevent the formation of excess stress hormones, which can damage the heart and brain cells …” It encourages people to “Take 1 capsule in the morning and another at lunchtime”.

COMPLAINT
The complainant submitted that “It is quite clear that the advert suggests the product protects the heart and brain from stress damage”, something which requires product-specific substantiation as per previous ASA rulings. He added that this is particularly important in this instance as the product claims to be a proprietary formulation.

He also referred to a claim that the product was “3 times more effective” and argued that this implies some sort of comparison that needs to be substantiated.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section (Substantiation) as relevant and explained that this should be read with Clause 4.25 of Section I (Scientific substantiation).

RESPONSE
Fluxmans attorneys, on behalf of the respondent, effectively raised two issues:

That the ASA Directorate is biased against it, and should therefore recuse itself from the matter;

That the complainant is a vexatious complainant, abusing the ASA process in order to further his vendetta against complementary medicines and the respondent’s products. In arguing this point it also elaborated to some extent on what it believes the complainant’s true motives are, namely to further the commercial interests of ARHIA and the Treatment Action Campaign (the TAC).

The relevant portions of the response will be dealt with in the ruling.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the complainant.

Bias against the respondent
The essential argument here is that:

The Directorate has previously “fraudulently” claimed that Appendix A and Appendix F were administered by the ASA on behalf of the Department of Health’s Medicines Control Council,

The respondent has “lodged a criminal complaint against the ASA in respect of the above, as well as a complaint with regard to Section 41 of the National Consumer Protection Act,

A previous ASA ruling ruled on clauses that were not identified by the complainants, and in one instance, the Directorate denied the respondent the right to confidentiality on documentation submitted as new substantiation, only to ultimately reassess and grant confidentiality,

Continued to process complaints against the respondent, primarily from members of the Association for Responsible Health Information in Advertising (ARHIA), who have a clear vendetta against the respondent,

Used “defamatory language” in rulings published in relation to the respondent,

The Directorate ruled against the respondent’s claims for confidentiality without even considering its submissions, and then published rulings on confidentiality in contravention of the Procedural Guide of the Code (which only allows for informing the respondent of such decisions, not for making a ruling on the issue),

The Directorate misapplied and misinterpreted the provisions of the Code when making certain rulings, and

The Directorate has acknowledged that there is “a reasonable apprehension of bias” against the respondent.

Insofar as these allegations are concerned, proper perspective is required.

The respondent is well aware that it has a right to appeal any ruling that it is aggrieved by. This is not only communicated in correspondence sent to the respondent at the beginning of every investigation, but is also stipulated in the Procedural Guide in the Code of Advertising Practice.

The comments made in 3), 5), 6) and 7) above are clearly arguments or grounds for appeal. The respondent has not, however, appealed the relevant rulings. As such, these arguments are largely irrelevant for the purpose of this investigation. While the respondent is correct that (refer point 3) above) there was one instance where the Directorate incorrectly assessed its arguments for confidentiality, this was as a result of human error, and was immediately rectified when the respondent brought it to the Directorate’s attention. Such a bona fide mistake (which was immediately rectified) is hardly indicative of bias.

Insofar as the comments made in 1) and 2) above are concerned, this is clearly a matter of opinion at this point in time, as no final pronouncement has been made by any authority in this regard. Again, however, the Directorate fails to see how a disagreement about the interpretation of the Code indicates a bias. It also deserves mention that the Code has since been amended to remove any potential doubt in this regard.

Insofar as the “acknowledgement” of a “reasonable apprehension of bias” against the respondent is concerned, this stems from correspondence between the Directorate and the respondent in another matter. In said correspondence, the Directorate commented on the respondent’s allegation that the Directorate was purposefully delaying matters where the respondent is involved. In its email addressed to the respondent, a representative of the Directorate noted as follows:

“... Perceived bias towards and deliberate delay of Solal matters

In short, this bias is nothing more than perceived. I can appreciate the fact that this is what it would look like from the outside, but the reality is that we simply have that much work to get to ...

... As a result of this, our consumer division is almost inevitably overburdened, which ultimately leads to delays. I can assure you that we do not have the time, desire or intention to deliberately delay your file, or any other file for that matter ...”

The respondent is clearly reading the above comment selectively, choosing to ignore the context and surrounding explanation. This is improper and somewhat disingenuous. Clearly, the above comment is not an acknowledgement of bias, but an attempt to clarify the context and nature of delays insofar as consumer complaints are concerned.

Lastly, the respondent believes that the Directorate has shown its bias by continuing to process, inter alia, complaints by ARHIA (an organisation or body that the complainant appears to subscribe or belong to) despite the fact that there are some delays in finalising other matters.

This argument is somewhat illogical. The ASA was established with the purpose of investigating complaints relating to the content of advertising. The Code and the relevant dispute resolution procedures specifically allow for the Directorate to receive and process new complaints irrespective of whether existing complaints have been finalised. There is nothing in the Code that prevents people from lodging complaints in accordance with the prescribed procedure, and the fact that the respondent has recently been the target of a number of complaints from a specific group does not prevent the Directorate from processing such complaints in the interim.

Given the above, the Directorate rejects the respondent’s allegation of bias, and is satisfied that it is procedurally entitled to rule on this matter.

Status of the complainant
The respondent alleged that the complaint is actually a “competitor complaint” as outlined in the Code. The main arguments are:

That the complainant has a malicious motive unrelated to the true purpose of the ASA (in addition to this it argued that the complainant has a vendetta against the respondent);

That the complainant directly or indirectly represents ARHIA, who in turn have a commercial interest;

That members of ARHIA (including the complainant, Prof Roy Jobson, Dr Harris Steinman, and the TAC or its representatives) “work together as a team to support each other in their common vendetta against complementary medicines and the advertisers thereof as well as in promoting competitor interests”. The point was also made that often the members of ARHIA would alternate lodging breach allegations when one of the members achieves a ruling in their favour.

That the complainant also has strong ties with the Treatment Action Campaign (the TAC), who in turn support the pharmaceutical industry, and has recently been represented by the same counsel that represented the TAC in another matter before the Final Appeal Committee.

That Dr Steinman and Prof Jobson are attempting to extort advertisers of complementary medicines by intimidating them into obtaining opinions from each other (for financial gain). Dr Steinman and Prof Jobson have also previously assisted the Sugar Association of South Africa in a dispute before the ASA.

Clause 4.12 of Section I of the Code defines a competitor complaint as follows:

"Competitor complaints" means complaints lodged by, or on behalf of, a commercial entity or individual with a commercial interest concerning compliance with the Code by another commercial entity.

Alternatively, a consumer complaint is defines as follows:

"Consumer complaints" means complaints lodged by members of the public or by entities or organizations regarding consumer related matters, concerning compliance with the Code by an advertisement or advertiser.

In MTN / Mr I McLean (14 May 2003), the Advertising Standards Committee (the ASC) considered an appeal relating to a consumer complaint (one of a large number of complaints) submitted by a Mr Ian McLean. At that point in time, Mr McLean lodged large volumes of complaints against cell phone advertising in particular. The ASC made the following point:

“In regard to the Respondent’s submission that the complainant ‘appears to be oversensitive’, and is not motivated by a genuine concern in respect of the relevant advertisement but is pursuing a vendetta or crusade against the cellular telephone industry, the Committee is of the view that the complaint is a valid one which needs to be considered by the Committee. The Committee is not in a position to make a ruling as to whether the Complainant could be likened to a ‘vexatious litigator’. Mr McLean appears to be a consumer activist. Without evidence suggesting otherwise the Committee cannot exclude his complaint or complaints on that basis. In any event there is doubt that the Committee can entertain such a complaint against a Complainant”.

This clearly illustrates that lodging multiple complaints (something which is not a novel occurrence at the ASA) does not automatically mean the complaints are vexatious. In considering the respondent’s allegations, the Directorate was mindful of the following:

The complainant specifically states that he is lodging this complaint in his personal capacity (i.e. NOT on behalf of another entity),

The complainant has previously explained the nature of his employment, and the Directorate is satisfied that there is no potential overlap or commercial interest for the complainant’s company or for the complainant by virtue of the fact that he works for his specific employer,

There is no evidence before the Directorate that the complainant was dishonest or deceitful with respect to points a) and b) above,

There is nothing before the Directorate to show that the complainant is likely to receive additional work or income as a result of lodging this complaint (this consideration is in line with the approach followed by the Advertising Standards Committee in Alcat Test / HA Steinman / 12001 / 12307 (11 June 2009).

By virtue of this alone, the Directorate is satisfied that the complainant is currently appropriately regarded as a consumer complainant in terms of the requirements of the Code.

It should also be mentioned that the Directorate is not convinced that the mere fact that the complainant is a member of ARHIA qualifies this complaint as a “competitor complaint”. From www.arhiasa.info it appears that ARHIA is a “voluntary” organisation that has two main objectives:

“ensure that health information given to South African citizens is responsible and accurate;
protect South African citizens from health products and services that are in any way misrepresented in terms of efficacy, safety or quality”.

The website explains that ARHIA regards a “voluntary organisation” as an agreement to work towards a common non-profit objective and that “ARHIA will in due course be formally registered as a non-profit organisation (NPO)”.

Applying the same criteria as above, there is nothing before the Directorate to show that ARHIA will benefit from the complainant’s decision to lodge a complaint, or that the complainant was instructed by ARHIA or any of its members to lodge this complaint.

Finally, and somewhat disturbingly, the respondent again argued that the TAC has a commercial interest and that the complainant is merely attempting to further that interest.

In Solal Technologies / HA Steinman / 17588 (19 October 2011) as well as Solal Technologies - Healthy Fast Foods / M Low / 16575 (see rulings dated 15 December 2010 and 29 June 2011) this very issue, or ground of objection was discussed and rejected. In addition, the Solal Technologies / HA Steinman / 17588 ruling also noted the following:

“Likewise here, the respondent has not submitted a shred of evidence that shows that the complainant has any commercial ties with the Sugar Association or, for that matter, with the TAC, was instructed by the either entity, or is attempting to protect any commercial interest of the either entity. There is also nothing to show that the complainant stands to benefit commercially from any adverse ruling in this matter”

Similarly, it is somewhat distressing to note that this very allegation was levelled at the complainant previously. In Solal Tech Omega 3 & 6 / K Charleston / 16711 (29 June 2011), the Directorate had to consider the same allegation. In deciding on the matter the Directorate pertinently rejected the allegation.

The Directorate therefore rejects the respondent’s assertion that the complainant is acting with a hidden commercial interest (either of ARHIA or of the TAC), and again finds that, at present, the complainant is regarded as a legitimate consumer complainant as defined in the Code.

Merits of the matter
In closing, the respondent argued that “... in the spirit of fairness ...” the Directorate should deliberate on the above issues first, giving full reasons, and only then afford it opportunity to argue the merits (assuming that it rejects the above arguments).

In Solal Technologies / SASA / 13733 (1 December 2009), the Directorate specifically noted the following in response to the exact same request from the respondent:

“The Directorate rejects this argument. The duty and jurisdiction of the ASA is to administer the Code of Advertising Practice. Clause 8.2.2 to 8.2.2.2 of the Procedural Guide provides that the Directorate shall call on the party, against whom a complaint has been made (who shall be referred to as the respondent), to respond to the complaint within three days.

Clause 8.2.2.3 of the Procedural Guide states that if the complaint or issue requires the provision of substantiation by the respondent, the Directorate shall call for such substantiation and shall specify the time period for its provision. The respondent will generally be given 48 hours to provide substantiation.

Clause 4.1 of Section II states, inter alia, that ‘Before advertising is published’, an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate. In short, the respondent is required to, in terms of the Code, have adequate substantiation on hand before publishing its advertising.

The respondent was advised in writing that the Directorate would consider its points in limine as well as the merits, should the need arise.

In Vodacom 4U / MTN / 10575 (8 April 2008), the Directorate ruled as follows:

‘The Directorate notes, however, that in terms of its procedures, an advertiser is given an opportunity to respond to a complaint in full. Should an advertiser raise a preliminary issue such as the one raised by the respondent, it must also address the merits in the alternative, so as to cover the possibility that the preliminary point might be dismissed. If the advertiser fails to also address the merits of the matter, it runs the risk of having its point dismissed and then leaving the issue to be decided without its comments’.

The Code specifically requires all advertisers to have in their possession all documentary evidence before advertising, so that when a complaint is made against it, it can submit such evidence in a short space of time. The respondent can therefore not argue that it would be prejudiced by virtue of having to subject its substantiation to independent verification, as it was compelled to have such independent verification on hand before it placed its advertising.

The Directorate is satisfied that the principles audi alteram partem were satisfied, and that the procedures of the Code were adhered to.

The respondent’s points in limine have been rejected. Accordingly, the Directorate will proceed to consider the merits of the matter”.

The exact same approach was also followed in Krill Oil / Vital Health Foods / 14580 (23 November 2009).

From this it would appear that the respondent is aware of the fact that it should argue the merits along with any points in limine it may wish to take, as failure to do so could result in an adverse ruling in the event of such points in limine being rejected. Despite this, however, it has not submitted any substantiation or argued the actual merits of the complaint.

Accordingly, the advertisement and the relevant claims objected to is currently unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.

The respondent is therefore instructed to:

withdraw the advertisement and relevant claims;

ensure that the withdrawal instruction is auctioned with immediate effect;

ensure that the advertising and relevant claims are withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide;

ensure that the advertising and relevant claims is not used again in future unless new substantiation has been submitted, evaluated, and a new ruling has been issued.

The complaint is upheld.

Consideration of sanctions
Clause 14 of the Procedural Guide deals with the types of sanctions that the ASA is able to impose, and clarifies that the ASA (including the Directorate, the Advertising Standards Committee, the Advertising Industry Tribunal and the Final Appeal Committee) “... shall be entitled to impose ...” the listed sanctions on “the respondent in a complaint”.

Over the past 6 months, the respondent has been ruled against on more than one occasion, usually based on the fact that it did not hold adequate substantiation for its claims (refer Solal Breast Protection Formula / R Jobson / 18707 (15 February 2012), Solal Medicine Making You Sick / M Low / 16636 (20 October 2011) and Solal Technologies / HA Steinman / 17588 (19 October 2011) for example).

In addition to this, attempts to have new substantiation accepted in Solal Technologies / KM Charelston / 15601 (14 February 2012), Solal Technologies / JC Laithwaithe / 15765 (24 January 2012) and Solal Technologies / SASA / 17484 (20 September 2011) were also unsuccessful, meaning that the claims at issue in these matters remained unsubstantiated.

Finally, this ruling has also expressed concerns over the respondent’s repeated attempts to raise procedural or interpretive issues that have been dealt with and rejected before (specific reference to the status of the complainant applies here).

Given this, the complainant is afforded 10 working days to comment on whether or not he believes sanctions in accordance of Clause 14 of the Procedural Guide are warranted, and if so, which sanctions and why. After this period, the respondent will be afforded an equal opportunity to comment on this issue, after which the Directorate will proceed to consider the issue of sanctions in accordance with the Procedures set out in the Code.
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