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Response number: 88

Responder: ASASA

Date of response: April 17, 2012

Type of response: ASA Directorate Ruling

Description

Solal Technologies / JC Laithwaite / 15765
Ruling of the : ASA Directorate
In the matter between:
Dr JC Laithwaite Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd Respondent

17 Apr 2012
http://www.asasa.org.za/ResultDetail.aspx?Ruling=6044

BACKGROUND
In a ruling dated 30 August 2010, the Directorate upheld a complaint against
the respondent's advertising for its eye protective nutrients, which were
punted on the premise that "... the eye damage that causes vision loss in
old age, actually starts in early adulthood or even younger". The
advertising explained how the respondent's products "Eyesight Protection"
product would protect against Age Related Macular Degeneration. At the time,
the respondent's substantiation was rejected because the expert put forward
(Dr Terry Grossman) was not held to be an acceptable independent and
credible expert.

In a subsequent ruling, dated 24 January 2012, the Directorate rejected the
respondent's attempt at substantiating the claims and advertising at issue.
The substantiation again included comments from Dr Terry Grossman, as well
as additional comments from Dr Clive Novis, Professor Sarel Malan, and Dr
Richard P Kratz. The Directorate also specifically pointed out that as a
result of this, the previous ruling remained in effect and that the
respondent was not allowed to use the advertisement or relevant claims.

SUBSEQUENT TO THE RULING ON NEW SUBSTANTIATION
On 26 January 2012, a complainant not party to this dispute, Prof Roy
Jobson, lodged a breach allegation pertaining to the respondent's website,
arguing that the claims and advertising appearing here are in breach of the
above-mentioned rulings.

In its reply dated 13 February 2012, the respondent (through its attorneys
Fluxmans) not only denied the breach allegation but also requested that the
breach investigation be suspended pending the outcome of its appeal (which
had not yet been lodged at the time). It also attached a draft of the appeal
it intended to lodge.

In a letter dated 14 February 2012, addressed to the initial complainant, Dr
Laithwaite, the respondent's attorneys stated, inter alia, as follows:

"... As already explained we have been instructed to address this letter to
you in an attempt to avoid or minimise further legal costs being incurred in
this matter. We are instructed and are accordingly obliged to notify you
that in the event of you opposing our client's appeal, our client intends to
seek the costs of the proceedings from you inter alia regard being had to:

... the fact that you failed to attempt to amicably resolve the matter with
our client prior to the complaint being lodged;

... the advertising claims which form the subject matter of the complaint
are true and have been substantiated by the documentary evidence submitted
by our client and any opposition would accordingly be unreasonable ..."

In an email dated 2 March 2012, delivered to both the ASA and the
respondent, Dr Laithwate confirmed that she would not oppose the appeal and
would abide by any ASA decision.

In correspondence dated 7 March 2012, the Directorate informed the
respondent that there was no opposition to the appeal or the request for
condonation for late filing thereof. The respondent was also reminded that
payment for this appeal was still outstanding, failing which the appeal will
not be heard, and the decision on the breach allegation would be finalised.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide
(Enforcement of rulings) was taken into account.

SUBSEQUENT CORRESPONDENCE
In a letter dated 8 March 2012, Fluxmans attorneys, on behalf of the
respondent, argued that the ASA's "... threat to proceed with the breach
investigation [was] immature and inappropriate" because it had not yet
received the ASA's written decision on the issue of condonation for the late
appeal, and had not yet received "... substantiation in the form of
documents and vouchers indicating the true actual costs of the so called
'non-refundable filing fee' ..." It added that it intends to proceed with
the appeal and pay the "true actual costs of the first appeal" if the ASA
provided written reasons for a decision to grant condonation of the late
appeal. Finally, it noted its belief that the Directorate is biased and
should recuse itself from the matter.

The Directorate replied stating that:

"... our letter dated 29 February 2012 informed you that Ms Laithwaite had
no objection to the application for condonation and she did not provide
reasons for that.

You were also informed that a non-refundable filing fee was payable and the
deadline was 5 March 2012 ..."

In addition, the Directorate drew specific attention to the provisions of
Clause 8.9 of the Procedural Guide, which states "Where payment is required,
such appeal will not be considered to be lodged until such time as proof of
payment is received by the ASA".

The respondent's attorney, replied stating that "...You have clearly not
read my earlier email. I suggest you read and consider it before you
respond". As a result, the Directorate again wrote stating "... we have
advised you that Ms Laithwaite had no objection to the application for
condonation and she did not provide reasons for that ... We reiterate that
you were notified that your client's application for condonation was not
opposed, and therefore payment of the Appeal fee was required ... In [the]
absence of proof of payment, as required by the Code, the appeal will not
proceed and the Directorate will proceed with the breach investigation".

The respondent again reiterated its view that the Directorate has not yet
provided a written decision in regards to the application for condonation of
the late appeal and that the Directorate is hiding the true costs of an
appeal. It also again stated that the Directorate is biased and ought to
recuse itself from the matter.

When the Directorate explained that it was of a view that all prior
correspondence clarified the issue, the respondent again requested a ruling
with reasons relating to its application for condonation, as well as written
reasons for the Directorate's "... 'decision' to refuse to deliver a written
ruling/decision with reasons in respect of our client's condonation
application". On the same day, the respondent also requested "... written
reasons from you in regard to the Directorate's decision in having refused
to recuse itself in Solal matters, including the breach investigation of
this matter ..." The Directorate was also threatened with legal action.
Various subsequent letters were received that, for the most part, reiterated
the requests for written reasons on the issue of condonation, disclosure of
the true costs of an appeal, written reasons for the Directorate's refusal
to recuse itself and impending legal action.

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

The respondent's pattern of disputing every decision made by the ASA
(whether in relation to a complaint or merely procedural and administrative
in nature) is well documented in other rulings. This does not serve any
purpose other than delay proceedings and cause undue prejudice to a
complainant in any matter. The Directorate sees no need to entertain all the
arguments and potential red herrings put up by the respondent.

As is clear from the detailed summary of correspondence above, the
respondent was informed at every turn that there was no opposition to the
request for condonation of its late appeal or to the actual appeal, and that
the only hurdle standing in the way of having the appeal heard by the
Advertising Standards Committee was payment of the appeal fee.

The respondent has been advised of this on more than one occasion, and it
was pointed out that the Procedural Guide stipulates that an appeal is not
considered "lodged" if any money is still outstanding. Given the
respondent's persistent failure to pay the fee, there is no reason for the
Directorate to proceed with the appeal. It should also be noted that any
attempt to proceed with an appeal now may well be subject to a new request
for condonation, as the respondent elected not to act when it learnt that
there was no opposition to its initial request for condonation.

As the Directorate has not say over the actual fee, this is not an issue to
address in the ruling.

Finally, in relation to the request for the Directorate to recuse itself on
the basis of the respondent's perception of bias, this has been dealt with
in part in the decision under the reference Solal Stress Damage Control / K
Charleston / 19746 (22 March 2012). The relevant comments need not be
repeated here, but the Directorate again stresses that a mere disagreement
about procedures cannot by any stretch of the imagination be indicative of
bias. The respondent is held to the same rules and procedures as any other
advertiser before the ASA. In addition, the respondent is a member of the
Health Products Association, who in turn is a member of the ASA. By
implication, the respondent has therefore agreed to the rules and procedures
as set out in the Code.

In dealing with the actual breach allegation, there is no dispute that the
advertising appeared on the respondent's website as late as 26 February
2012. In fact, at the time of ruling, the advertising was still available on
the respondent's website.

The complainant who brought the breach allegation before the ASA took issue
with the following claims, which appears on the respondent's website and on
the labelling which is accessible via the respondent's website:

"INDICATIONS:
Helps protect the eyes against Age Related Macular Degeneration (ARMD) the
main cause of age related eye damage, reduced vision and blindness. Eyesight
ProtectionTM helps protect against the four main causes of ARMD, namely
everyday UV - sunlight exposure, free radical damage, elevated homocystene
(a toxic amino acid that occurs naturally in the body) and glycation (a
process that ocurrs naturally in the body, similar to oxidation that damages
and deforms structural proteins and sugars found in the eye). Eyesight
ProtectionTM may also help prevent low vision loss, eye fatigue, intolerance
to glare, cataracts, retinopathy and glaucoma".

The original advertisement was headed "Interesting facts about your health"
and stated, inter alia, "FACT 1: The eye damage that causes vision loss in
old age, actually starts in early adulthood, or even younger".

The copy further stated:

"Everyday sunlight exposure causes a type of damage to the eyes known as
macular degeneration. This damage accumulates over time and ultimately
results in reduced vision and possibly even blindness in old age (known as
ARMD: Age Related Macular Degeneration). This damage begins at a young age,
even in childhood, but only manifests with reduced vision in old age. To
protect your eyes, adults and children should wear UV-protective sunglasses
outdoors during sunny days. You also need to begin supplementation with
eye-protective nutrients from early adulthood."

Readers were encouraged to start using this product ". from early to
mid-adulthood" and that the product should be ". used on a regular daily
basis thereafter, even in the absence of symptoms ."

It explained how the respondent's "Eyesight ProtectionTM" helped "protect
the eyes against eye damage from UV-sun rays .", "Minimises low-light vision
loss, eye fatigue, intolerance to glare and other eye disorders" and should
be used ". on a regular basis . even in the absence of symptoms ."

It is accepted that the current claims on the respondent's website and
labelling are not verbatim the same in terms of actual phraseology and
semantics. However, they still communicate that the respondent's product is
able to protect against a condition called "Age Related Macular Degeneration
(ARMD)" as was the case in the original advertisement. This impression was
held to be unsubstantiated in the original ruling (published over a year and
a half ago) as well as the subsequent rejection of new substantiation
published in February 2012.

The Directorate is therefore satisfied that the respondent's current
advertising and packaging are in breach of the original ruling, and
therefore in breach of Clause 15 of the Procedural Guide.