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Solal Technolohies / SASA / 17484

Ruling of the : ASA Directorate
In the matter between:
South African Sugar Association Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

05 May 2011

Attorneys Cliffe Dekker Hofmeyr, on behalf of the complainant, lodged a competitor complaint against the respondent’s advertising appearing on, inter alia, its website www.solaltech.com.

The advertisement promotes the respondent’s “Naturally Sweet” and “Stevia Sweet” products, and contains, inter alia, the following claims:

  • “For a long time it has been known that a diet high in sugar can cause weight-gain, diabetes and sugar-shock (tiredness about 1 hour after eating or drinking something sweet)”

  • “More recently, research conducted in 2008 and 2009 has shown that sugar excess can suppress your immune system and increase the risk of developing cancer”.

  • “Healthy alternative to sugar …”

COMPLAINT
In essence, the complainant argued that the advertisement misconstrues the effects of sugar consumption, thereby creating an unsubstantiated and negative image relating to the role of sugar in balanced diets. It added that the claims made are devoid of any credible scientific proof, and to some extent contradict comments made by, inter alia, the World Health Organisation and the European Food Safety Authority that there is no evidence of a direct involvement of sugar in the aetiology of lifestyle diseases such as diabetes, hypertension and cardiovascular disease. Likewise, recent reviews could find no positive association between sugar consumption and weight gain.

In support of its argument, the complainant submitted articles and reference material that contradict the claims made by the respondent.

The complainant added that the claims are also disparaging and in contradiction of the provisions relating to comparative advertising, because the claims made are not factual or in the public interest, and clearly aim to unfairly discredit sugar.

Finally, the complainant referred to an earlier ruling in the matter Solal Technologies / SASA / 14813 (27 August 2010) in which the Directorate accepted substantiation from the respondent in the form of a letter of verification from a Mr Koping. The complainant pointed out that in Lifebuoy / Dettol / 14813 (27 August 2010) the Advertising Industry Tribunal (the AIT) ruled that the Directorate is required to apply its mind to a matter and any substantiation submitted to satisfy itself that there was sufficient, credible evidence supporting the claims. In the previous matter, Mr Koping’s letter was accepted as substantiation without demur. In keeping with the precedent established in the Lifebuoy ruling, this can no longer suffice. In the event that the respondent again attempts to rely merely on Mr Koping’s letter, the ASA should reject it on the basis of the principles laid down by the AIT.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:

• Section II, Clause 2 – Honesty

• Section II, Clause 4.1 – Substantiation

• Section II, Clause 4.2.1 – Misleading claims

• Section II, Clause 4.2.5 – Statistics and scientific information

• Section II, Clause 6 – Disparagement

• Section II, Clause 7 – Comparative advertising

RESPONSE
Wagner attorneys, on behalf of the respondent, ultimately submitted that it does not submit to the ASA’s jurisdiction in such matters, as the duty for regulating medicines and complementary and alternative medicines (CAMs) lies with the Medicines Control Council, not the ASA.

By virtue of the fact that the Directorate has, according to the respondent, suspended all investigations into Solal advertising pending clarity from the MCC in relation to whether or not the ASA has the power to enforce Appendix A and/or Appendix F, the current dispute should also be held in abeyance until clarity is obtained in this regard.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

Potential undertaking
Aside from denying that the ASA has jurisdiction over its advertising, the respondent also mentioned that the advertisement in question was a trade advertisement, and was never intended to be communicated to the general public. As such, it has been removed from its archive of consumer advertising, where it was placed inadvertently.

While the Directorate has some discretion to accept undertakings to remove any advertising complained of as an adequate resolution, this is ordinarily done upon receipt of an unequivocal undertaking to never use the relevant advertisement again. The respondent did not offer such an unequivocal undertaking.

In addition, Clause 4.13 of Section II includes “trade customer[s]” in the definition of a consumer. By virtue of this, the fact that a particular piece of advertising was aimed at a trade customer, rather than an ordinary member of the public, is immaterial for the purposes of determining whether the ASA has jurisdiction. The material in question, even if only intended for a trade customer, would still be regarded as “advertising” in terms of the Code.

As such, the fact that the respondent has removed the material from its archive of consumer advertisements on its website is not an adequate resolution to the matter.

Suspended investigations
At the time of receiving and starting to investigate this complaint, the Directorate had also received some other consumer complaints against Solal’s advertising. Many of these complaints also related to the provisions contained in Appendix A and/or Appendix F of the Code.

In these matters, the respondent raised a concern over the ASA’s ability to rule on the provisions contained in these appendices. While deciding on this specific issue, the Directorate agreed to suspend all such relevant investigations until clarity has been obtained.

However, the dispute at hand does not relate to Appendix A or Appendix F, and as such whether or not the Directorate has the power to administer these appendices is irrelevant at this time. Accordingly, any suspension of other investigations would not apply to this matter, and cannot prevent the Directorate from finalising this particular dispute.

The respondent appears to be under the impression that the Directorate has no mandate to investigate advertising of medicines.

Clause 4.1 of Section I defines an “Advertisement” as any visual or aural communication, representation reference or notification of any kind which is, inter alia, “intended to promote the sale” of any goods or services. There is no restriction placed on this definition that would prevent the Directorate from considering advertising for CAMs such as the respondent’s products. In addition, nothing in the Code suggests that the Directorate is prevented from considering complaints in relation to such products. While true that the amended Appendix A specifically excludes CAMs from its scope, this does not nullify the applicability of any of the other provisions of the Code.

Given that the ASA is tasked, in terms of the Code, to investigate any breaches of the rules contained in the Code, the Directorate clearly has jurisdiction over the matter and is able to rule on the complaint.

Merits
The respondent submitted no arguments on the merits of the matter.

It is also noted that the respondent in the current matter is Solal Technologies (Pty) Ltd, whereas the respondent in the previous dispute where such claims were considered was Solal Technologies Fine Pharmaceuticals (Pty) Ltd. From previous correspondence submitted by the respondent in the matter Solal Technologies / SASA / 13733, it appears that Solal Technologies Fine Pharmaceuticals (Pty) Ltd was registered under the registration number of 2005/043596/07, whereas Solal Technologies (Pty) Ltd was registered under number 2009/011695/07.

Correspondence received from one of the respondent’s directors also reflects the correct number for Solal Technologies (Pty) Ltd, and shows that it is the appropriate respondent.

Given that these are different companies, any substantiation previously accepted in relation to Solal Technologies Fine Pharmaceuticals (Pty) Ltd would not apply to advertising by Solal Technologies (Pty) Ltd. As noted above, the respondent opted not to submit any arguments on the merits of the matter.

In the absence of any substantiating documents from the respondent, the advertising and claims objected to are clearly in breach of Clause 4.1 of Section II of the Code.

By virtue of this, the claims are likely to mislead in a manner that is in contravention of Clause 4.2.1 of Section II of the Code.

Similarly, given that the claims in question do not appear to be factual, they are likely to disparage sugar in a manner that contravenes Clause 6 of Section II of the Code.

Also, given that the claims have been held as unsubstantiated, misleading and disparaging, they are in contravention of Clause 7 of Section II of the Code.

From the above, it appears that the advertising is aimed at abusing consumer trust and exploiting consumer credulity. This is in contravention of Clause 2 of Section II of the Code.

Given the above:

  • All claims and advertising objected to by the complainant must be withdrawn;

  • The process to withdraw the claims and advertising must be actioned with immediate effect on receipt of this ruling;

  • The withdrawal of the claims and advertising must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;

  • The claims and advertising may not be used again in its current format until new substantiation has been submitted, evaluated and a new ruling is made.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

The complaint is upheld.

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