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Solal Technologies / KM Charelston / 15601

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

14 Feb 2012

BACKGROUND
In a ruling dated 26 August 2010, the Directorate upheld a complaint against the respondent’s advertisement for its Vitamin D supplement.

The advertisement claimed that “Vitamin D is as effective as a vaccine”, and stated, inter alia, “Vitamin D is extremely safe. There are virtually no negative side effects from people taking vitamin D supplements, even at seemingly high doses, such as 2000 IU per day (five times the current South African RDA).”

The substantiation rejected by the Directorate at the time consisted, inter alia, of verification from Doctor Miller. The Directorate rejected Dr Miller, finding that he was not a suitable independent, credible expert to verify the claims.

As a result, the respondent was instructed to withdraw the claims with immediate and permanent effect. The respondent’s attention was also drawn to the provisions of Appendix F of the Code.

SUBSEQUENT TO THIS RULING
In correspondence dated 28 June 2011, the respondent submitted new substantiation for the advertising and claims at issue. It also alleged that the complainant actually lodged the complaint on behalf of the Treatment Action Campaign. The latter concern about the complainant states, however, warrants no reply in this ruling, as no evidence of this was presented. It should also be noted that similar concerns have been dismissed in past rulings (refer Solal Tech Omega 3 & 6 / K Charleston / 16711 (29 June 2011). It would appear that the respondent does not take the time to consider such allegations and merely hurls them at the ASA in an attempt to frustrate the process. This is disingenuous and contrary to the spirit of the Code.

The respondent submitted that it had documentary evidence emanating from independent credible experts in support of all the claims in the advertisement prior to publication. It now submitted this documentation and requested confidentiality. The request for confidentiality was denied by the Directorate as the documentation did not meet the criteria set out in the Code, and the respondent was afforded an opportunity to withdraw any documents it did not wish to remain available. It opted not to withdraw any documentation.

The Directorate then proceeded to forward on the documentation to the complainant to comment on the independence, credibility and expertise of the expert put forth by Solal.

COMPLAINANT’S COMMENTS
With regards to the documentary evidence submitted, the complainant submitted that “The bulk of the ‘documentary evidence’ consists of extracts from studies – most of which are available on the internet.” He added that the Cochrane collaboration is a venerable organisation which does excellent work in meta-analyses of clinical trials. However, cherry picking individual analyses as the respondent has done and applying them without due consideration is abysmal science. Mr Murphy (Solal’s representative who compiled the data) has isolated 3 studies in this regard.

The reference to the Australian Chief Medical Officers announcement impacts on the efficacy of the flu vaccine. It may support a contention that the vaccine is dangerous for young children, but that is not the complaint in relation to the advertisement complained of and thus irrelevant.

The American Journal of Clinical Nutrition deals with a study conducted in Japan, which is a small study comprising of 334 school children. The complainant expressed doubts that a population that 1) resides in the northern hemisphere, and 2) spends most of their daylight hours in classrooms is applicable to a South African market or environment. Reference was also made to a study of South African 10 year olds suggests that found no Vitamin D deficiency as alleged by the respondent in the advertisement.

He added that the respondent has picked a number of different information sources, none of which expressed a view of the efficacy of Vitamin D vs. the efficacy of a vaccine in preventing influenza.

Mr Charleston also submitted additional documentary evidence to counter the documentary evidence submitted by Solal’s Brent Murphy. It is noted, however, that this is contrary to procedure. At this point in the dispute, it is up to the respondent to satisfy the Directorate that its claims are valid. Should the Directorate accept the respondent’s new substantiation, the complainant would be entitled to request arbitration in accordance with Clause 16 of the Procedural Guide, at which point the complainant’s contradictory evidence would be considered.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the new substantiation the following clauses of the Code were taken into account:

• Section II, Clause 4.1 - Substantiation

• Section II, Clause 4.2.1 - Misleading claims

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

The essential question before the Directorate is whether or not the respondent has submitted adequate evidence in accordance with Clause 4.1 of Section II of the Code to show that the following claims are true:

  • “Vitamin D is as effective as a vaccine”,

  • “Vitamin D is extremely safe. There are virtually no negative side effects from people taking vitamin D supplements, even at seemingly high doses, such as 2000 IU per day (five times the current South African RDA)”.

While the Directorate notes that the complainant also (in its response to the new substantiation) took issue with claims in the advertisement namely, that Vitamin D deficiencies promote cancer, diabetes, osteoporosis, kidney disease, depression, obesity and heart disease, this cannot be considered at this time, as it was not raised as an issue in the original complaint.

The respondent submitted various reports detailing studies undertaken by or relating to, inter alia, The Cochrane collaboration, seasonal mortality in the US elderly population, the Australian chief medical officer’s announcement on the efficacy of vaccines, The American Journal of clinical nutrition and information obtained at its Integrated Medical Centre in Bryanston (which the complainant correctly noted is not an independent facility. The centre’s website www.imcmed.co.za is owned by the respondent, and according to information available on the URL http://www.solaltech.com/About%20IMC%202011.pdf, it is the respondent’s centre. The doctors working at the centre also appear to sit on the respondent’s Board of Directors, or Medical Advisory Board).

Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, Clause 4.1.4 of Section II stipulates that documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.

The first concern that the Directorate has with the new substantiation is that none of the documentation appears to unequivocally state either that “Vitamin D is as effective as a vaccine”, or that “Vitamin D is extremely safe. There are virtually no negative side effects from people taking vitamin D supplements, even at seemingly high doses, such as 2000 IU per day (five times the current South African RDA)”.

At best, the respondent has supplied articles it believes support this contention, but essentially, this is all it is – the respondent’s contention. There is no verification from an independent and credible expert in the field, as required by the Code, that these findings (or even the respondent’s interpretation of these findings) can be extrapolated and applied to the respondent’s recommendations or the South African Market at which the advertisement is aimed.

The Directorate also notes that the advertisement at issue points out that there are three types of Vitamin D (titled “D1”, “D2” and “D3”), and that the respondent only supplies D3. Much like there is no verification of the respondent’s interpretation of the relevant data, there is no verification that the findings relied on are specifically applicable to the D3 variant promoted in the advertisement.

The respondent’s request for the Directorate to “let us know whether you require our client to engage in the services of a further independent expert to assess whether the documentary evidence confirms the accuracy of the claims as contemplated by clause 4.1.5.1 of the Code” is regarded as disingenuous. The respondent was informed as far back as 2009 (refer Krill Oil / Vital Health Foods / 14580 (23 November 2009)), that the Directorate requires independent verification. In this ruling, the Directorate specifically pointed out as follows:

“The Code specifically requires all advertisers to have in its 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”.

This point was also made in Solal Technologies / SASA / 13733 (1 December 2009). In addition, the original decision in the current matter also emphasised the need for independent and credible verification. One of the reasons why the respondent’s expert in this instance was not accepted was because the Directorate had reservations about his independence. Similarly, the ruling in the matter Solal Technologies / JC Laithwaithe / 15765 (30 August 2010) rejected the respondent’s proposed expert on the basis that he was not independent.

It also deserves mention that the respondent was indeed able to supply such independent verification in the Krill Oil matter. On 9 February 2010, the Directorate accepted the respondent’s new substantiation based on the verification from an independent and credible expert.

The Directorate is therefore satisfied that the respondent is well aware of the relevant requirements of the Code in order to substantiate a claim or claims. The Directorate therefore sees no need to further protract the matter to give the respondent a third opportunity to substantiate its claims.

While not material for the purpose of this ruling, the Directorate would like to express its disappointment at the respondent’s allegation that it had these documents on hand all along, and prior to publishing the advertisement. If this is indeed so, why has the respondent waited nearly a year to attempt to have its claims substantiated?

In light of the above, the claims at issue remain in breach of Clause 4.1 of Section II of the Code, and the respondent is still not allowed to use them.

The new substantiation is accordingly rejected and the ruling dated 26 August 2010 remain binding and in effect.

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