A database that tracks dubious medical claims.
Response number: 89
Date of response: March 23, 2012
Type of response: ASA Directorate Ruling
Accordingly, the respondent's claims for the Plus Range, as recorded above, are unsubstantiated and therefore in contravention of Clause 4.1 of Section II.
Claims dealt with in this response
- Claim no 65: Pharma Natura PTY (Ltd) Supports Cardiovascular Health made on 2012-02-01 - Untested and implausible
Vitaforce Plus Range / R Jobson / 19037
Ruling of the : ASA Directorate
In the matter between:
M R Jobson Complainant(s)/Appellant(s)
Pharma Natura (Pty) Ltd Respondent
23 Mar 2012
Prof Jobson lodged a consumer complaint against Pharma Natura's Internet
advertisement promoting its Omega Plus, Magnesium Plus, Spirulina Plus and
Calcium Plus capsules that fall within its "Plus Range". The advertisement
was published at http://pharmanatura.co.za/vitaforce-PlusRange.aspx.
The advertisement, inter alia, contains a table setting out the following
. "Magnesium Plus Tabs 30" "Supports the nervous system and keeps muscles
. "Calcium Plus 650mg Tabs 60" "Optimal bone development and strength"
. "Omega Plus Caps 30" "Promotes cardiovascular health"
. "Spirulina Plus Tabs 90" "Helps promote energy and vitality"
The complainant submitted, in essence, that claims promoting the Plus range
of products need scientific substantiation.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.1 of Section II (Substantiation) of the
Code was considered relevant.
The respondent submitted, inter alia, that:
The complaint is vexatious as it is motivated by the intention to frustrate
the respondent and to ensure that it does not have the ability to respond
properly (this argument appears to stem from the fact that the complainant
recently lodged a number of complaints against the respondent's advertising,
all requiring a response within the short periods defined in the Code).
The complainant's self-proclaimed crusade against companies such as the
respondent is evident from his statements in an article published during
2011, dealing with the fact that the Minister of Health has appointed the
complainant to serve as Council member of the Allied Health Professions
Council of South Africa (AHPCSA). In this article, the complainant states
that the Medicines Control Council (MCC) failure to act ". resulted in 155
000 complementary and alternative medicines being available on the market ."
and that "The overarching mandate of the AHPCSA and the one I am
particularly committed to myself is to promote and protect the health of the
public". In light of these statements, it is apparent that the complainant
is using the ASA as a quasi regulatory authority for the purpose of
determining what may or may not be said about certain products.
Matters pertaining to the regulation of complementary medicines are better
left to the current regulatory authorities such as the MCC and the powers
that the MCC enjoys in terms of applicable legislation. Reference was also
made to a "longstanding feud" between the complainant and members of the
Health Products Association (the HPA) of which the respondent is a founding
member, and the argument was made that the complainant is attempting to get
the ASA to deal with an issue that the MCC has not (determining what
complementary medicines are allowed to claim).
It has no intention of subjecting itself to the jurisdiction of the
Advertising Standards Authority as the Medicines Control Council (MCC) has
already assumed control over complimentary medicines from the point of view
of dealing with the said medicines as registerable medicines pursuant to the
provisions of the Medicines Act. It also attached a letter from the HPA
addressed to the ASA in which concern is expressed over the "onerous"
standards that the ASA is imposing on such products. Seeing that the MCC has
recently published draft regulations and guidelines the ASA should refrain
from any investigations on such products until the relevant regulations and
guidelines are finalised and formalised.
Finally, it added that it was taking legal advice concerning the institution
of legal proceedings pursuant to the provisions of the Intimidation Act no.
72 of 1982 against both the complainant and the ASA.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by
the respective parties.
Jurisdiction of the ASA
The respondent submitted that it does not recognise the jurisdiction of the
ASA in this instance, and that it would regard any ".exercise of any
purported jurisdiction by the ASA over the products referred to above . [as]
an exercise of jurisdiction outside of the Code and contrary to the
provisions of the Medicines Act and South African law in general ."
It cannot be disputed that the ASA is only empowered to consider and rule on
allegations that any disputed advertising contravenes the provisions of the
Code of Advertising Practice. This is echoed not only in various rulings
over the years, but also in the Code itself.
Clause 2.1 of Section I states, inter alia, that "The primary objective of
this Code is the regulation of commercial advertising. It applies therefore
(except as expressly provided further on) to all advertisements for the
supply of goods or services or the provision of facilities by way of trade
Insofar as the respondent's industry is concerned, only one exclusion
Clause 220.127.116.11 of Appendix A of the Code specifically excludes "The
marketing or promotion of complementary medicines ." It is important to
understand, however, that this exclusion ONLY relates to the provisions of
this appendix, and not to the entire Code.
In Pretoria Civil Action & Another / City of Tshwane Metropolitan
Municipality (15 November 2005), the FAC also emphasised the fact that the
ASA is obliged to and entitled to rule on advertising complained of even if
the advertiser does not concede to the ASA's jurisdiction. It held:
"Even if the appellant had not appeared, after giving it an opportunity to
do so, the ASA, at the request of a consumer, with due notice to the
appellant could make a ruling binding on its members. The members in
adhering to the ASA's ruling would not be violating any protectable legal
right of the appellant and would not commit an unlawful act. Nor would the
ASA be doing so in making the ruling and nor would the consumer in asking
for such a ruling. Vide Tothill vs. Gordon, 1930 WLD 99 and the ruling of
this committee in National Brands Limited vs. Kwality Biscuits (Pty) Ltd".
While the respondent may, or may not, have advertising agents that belong to
a constituent member of the ASA, it may well choose to utilise a member of
the ASA to carry its advertising. If this were to happen, such members, and
indirectly, the respondent, would be bound by all relevant rulings. It is
also clear that the ASA is required to consider all "valid" complaints.
The complaint at hand was simply one of substantiation, as detailed in
Clause 4.1 of Section II of the Code. There is nothing in the complaint, or
for that matter, in the provisions of Clause 4.1 of Section II of the Code,
which seeks to empower the Directorate to fulfil the mandate or duties of
the MCC. The provisions of Clause 4.1 of Section II (as will become more
apparent below) simply require appropriate substantiation for any and all
direct or implied claims that are capable of objective substantiation. This
does not require consideration of whether or not the MCC has, should, or
must approve the respondent's product or register it as any type of
In light of the above, the Directorate is satisfied that it has jurisdiction
over the respondent's advertising and is entitled to receive and consider
valid complaints against it.
Status of the complainant
The respondent appears to interpret the complainant's actions as indicative
A crusade against so-called Complementary Medicines
Indicative of a "longstanding feud" between the complainant and members of
In support of this, it relied on a press-release of sorts, dealing with the
complainant's appointment to serve as Council member on the Allied Health
Professions Council of South Africa (AHPCSA).
However, the response does not clarify why statements by the complainant
such as ". 155 000 complementary and alternative medicines BEING AVAILABLE
ON THE MARKET ." and ". THE ONE I AM PARTICULARLY COMMITTED TO MYSELF IS TO
PROMOTE AND PROTECT THE HEALTH OF THE PUBLIC" (respondent's emphasis)
indicates a crusade or malicious intent, much less a "long-standing feud"
with members of the HPA.
In MTN / Mr I McLean (14 May 2003), the Advertising Standards Committee (the
ASC) considered an appeal relating to a complaint (one of a large number of
complaints) submitted by a Mr Ian McLean. At that point in time, Mr McLean
advertisement 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. Any respondent making such an allegation should
rely on more than simply its opinion when doing so. Considering the
quotation highlighted by the respondent that the complainant wants to commit
himself to promoting and protecting the health of the public, the
Directorate is hard-pressed to regard this as indication of mala fides. It
is also not clear why the respondent believes that the complainant has a
"longstanding feud" with members of the HPA.
While perhaps true that the complainant is knowledgeable in the field of
medicine (something which is arguably supported by his recent appointment to
the AHPCSA by the Minister of Health), there is nothing precluding him from
lodging a complaint within the parameters of the ASA Code. In lodging his
complaint, the complainant complied with the relevant procedures, and his
complaint is clearly related to a provision of the Code which the
Directorate is able to administer.
Accordingly, the Directorate does not share the respondent's view that the
complaint is vexatious, in bad faith or designed to get the ASA to fulfil
the mandate of the MCC.
Competence of the ASA
The respondent appears to believe that the ASA cannot, and should not
consider claims and advertising relating to complementary medicine because
it does not have the expertise to do so.
The principles of Clause 4.1 of Section II have been explained in great
detail over the years. In effect, it requires advertisers to hold
verification for any and all direct or implied claims that are capable of
objective substantiation. In addition to this, it stipulates that such
evidence should either emanate from, or be evaluated by an independent and
credible expert entity. It is also trite that the ASA requires such
verification to be product-specific and unequivocal in nature.
The one main reason for the requirement of independent and credible expert
substantiation is because the ASA is clearly not a technical expert body. As
such, the Code allows for the ASA to consider and accept verification from
someone who is, provided that a proper interrogation of such verification
and supporting literature occurs (refer the ruling of the Advertising
Industry Tribunal in Lifebuoy / Dettol / 14813 (27 August 2011) for more
If anything, the fact that the MCC is charged with determining whether a
product should be registered as a medicine (presumably by, inter alia,
evaluating the supporting evidence and claimed efficacy) does not preclude
the Directorate from discharging its onus in terms of considering whether
the respondent has adequate substantiation as required by Clause 4.1 of
By virtue of the fact that the respondent is making use of efficacy claims
in its advertising, the provisions of the Code apply. At best, there could
perhaps be an argument of concurrent jurisdiction, but this does not prevent
the ASA from exercising its discretion and fulfilling its mandate by ruling
on the matter. The dispute before the ASA is NOT whether or not the product
(or in this instance products) should be registered, but simply whether it
can prove its efficacy claims.
As such, the Directorate is satisfied that it is competent and empowered to
consider the complaint currently before it within the parameters of the
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. It is also trite that such substantiation has to be
product-specific and unequivocal.
The only question before the Directorate is whether or not the respondent
has proof that its products, as available on the market and when consumed at
the recommended dosages, will deliver the claimed results.
In Vodacom 4U / MTN / 10575 (8 April 2008), the Directorate ruled as
"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 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, however, did not address the merits of the matter and did not
tender any documentary evidence to support the claims made in its
Accordingly, the respondent's claims for the Plus Range, as recorded above,
are unsubstantiated and therefore in contravention of Clause 4.1 of Section
Given the above:
The claims quoted at the beginning of this ruling, made in relation to the
respective products, must be withdrawn;
The process to withdraw the claims must be actioned with immediate effect on
receipt of this ruling;
The withdrawal of the claims must be completed within the deadlines
stipulated by Clause 15.3 of the Procedural Guide;
The claims may not be used again in their current format until new
substantiation has been submitted, evaluated and a new ruling is made in
terms of Clause 4.1.7 of Section II of the Code.
The respondent's attention is also drawn to Clause 15.5 of the Procedural
The complaint is upheld.