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Response number: 94
Responder: ASASA
Date of response: May 7, 2012
Type of response: ASA Directorate Ruling
The claims must be withdrawn and not used again
Claims dealt with in this response
Description
Health Matters-Immune Restore / K Charleston / 19467
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Streamline Trading t/a Health Matters Respondent
07 May 2012
http://www.asasa.org.za/ResultDetail.aspx?Ruling=6072
Mr Charleston lodged a consumer complaint against the respondent's print
advertisement appearing in the Mail and Guardian during December 2011.
The advertisement, inter alia, promotes the respondent's "Immune Restore
Optimal Health Supplements" under the heading "ARE YOU HIV+?" It punts the
product as "... a combination of trace elements essential for normal immune
system" and explains that it "... replaces the vital aminal acids & vitamins
depleted by HIV". It also features four ticked boxes with the following
wording:
. "LOWERS VIRAL LOAD"
. "REPAIRS IMMUNE SYSTEM"
. "IMPROVES CD4 COUNT"
. "CAN BE TAKEN WITH ARVS".
COMPLAINT
In essence, the complainant submitted that the claims highlighted above
(save for "CAN BE TAKEN WITH ARVS", which the complainant did not specify)
are unsubstantiated. In addition, the references to HIV, viral load, CD4
counts and ARVs are clearly a reference to Aids, which contravenes the
provisions of Appendix F.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into
consideration:
. Section II, Clause 4.1 - Substantiation
. Appendix F - References to diseases
RESPONSE
The respondent submitted that the advertising was directly copied from
information supplied by its overseas supplier. However, as the product was
not received well and proved not to be a viable business venture, it has not
embarked on any further advertising.
When asked by the Directorate whether this means that it unequivocally
undertakes to refrain from using the advertisement and claims objected to,
the respondent did not reply.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by
the respective parties.
In light of the fact that the respondent did not confirm that it would
refrain from using the advertisement and claims objected to in future, the
Directorate had no option but to proceed on the assumption that the
respondent would not. As such, the merits of the matter had to be
considered.
Clause 4.1 of Section II requires verification for any direct or implied
claims that are capable of objective verification. It further specifies that
this verification should either emanate from, or be evaluated by an
independent and credible expert.
The Directorate is satisfied that the claims objected to by the complainant
are capable of objective verification in terms of Clause 4.1 of Section II.
The respondent, however, did not submit any.
Accordingly, the advertising and claims objected to is unsubstantiated and
in breach of Clause 4.1 of Section II of the Code.
Furthermore, Appendix F lists a number of diseases to which reference cannot
be made unless the product is registered with the Medicines Control Council
(the MCC) and the claims approved by the MCC. One such condition listed in
Clause 2 of Appendix F is AIDS.
This advertisement clearly targets people who have HIV and creates an
impression that the product would, inter alia, lower one's viral load and
improve CD4 levels. It therefore falls within the parameters of Appendix F.
While the Directorate notes that Clause 2 of Appendix F provides for
reference to AIDS in instances where the advertising is educational or
informational, and/or where the product is not registrable with the MCC, the
respondent has not made out a case that either of these conditions apply,
and there is nothing in the advertisement to suggest that this is the case.
As such, and based on the information at hand, the advertising appears to be
in contravention of the provisions of Appendix F.
In light of the above:
The respondent is instructed to withdraw its advertising and the claims
objected to,
The respondent is instructed to action the withdrawal of the advertising and
relevant claims with immediate effect upon receipt of this ruling,
The respondent is instructed to ensure that the advertising and claims
objected to are withdrawn within the deadlines stipulated in Clause 15.3 of
the Procedural Guide, and
The respondent is instructed to refrain from using this advertisement and
the claims objected to again in future.
The complaint is upheld, and the respondent's attention is drawn to the
provisions of Clause 15.5 of the Procedural Guide, which effectively
requires offending advertising to be removed from any media in which it
appears irrespective of whether or not the complainant specifically referred
to such media.