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Advertising opinion

Appendicitis at the ASA?

It's not often that the Advertising Standards Authority of South Africa (ASA) leave me completely speechless. Slightly surprised, yes. But not speechless. Luckily for you, my speechlessness only lasted a few hours and now I am full of words. Not all of which I can appropriately use.
The cause of my problem - a ruling dated 16 August 2012 in the matter of Nycomed-Dona / K Charleston in which the ASA said:

"At a resolution passed by the ASA board on 4 February 2012, it was decided that Appendix F should no longer form part of the ASA Code."

Implications

To understand the implications of this sentence, you first have to understand Appendix F. Appendix F contains (contained?) a list of diseases that, basically, cannot be mentioned by products that are not registered medicines.

Appendicitis at the ASA?
This appendix has always been controversial. It contains some mighty strange diseases such as "Leg trouble" and "Diseased ankles". It has also prevented many complementary medicines from advertising treatment for arthritis and osteoarthritis, despite well-documented proof that their products do seem to offer some relief.

I have never been a fan of this appendix, believing that the list needed urgent revisiting. This having been said, Appendix F offered two very important protections: it only allowed registered medicines to offer treatment for cancer, and AIDS.

Not hard to fathom

The reason that the board passed the urgent resolution is not hard to fathom. On 3 February 2012 in Solal Tech Omega 3 & 6 / K Charleston / 16711, the Final Appeal made a ruling regarding the interpretation of Appendix F. The parties in this matter are important - Solal is a company known for its aggressive approach with the ASA and, I believe, is currently taking it on review. Dr Charleston is one of a trio of regular complainants who seem committed to keeping the complementary medicines industry underground.

In addition, fingers have been pointed at the ASA about "ownership" of the Appendices, with the Medicines Control Council (MCC) suddenly refusing to take responsibility for anything in them. I have actually personally sat in a meeting about Appendix F with an MCC representative present and defending it... but that is another story.

Reasons for being upset

So why am I so upset? The first reason is to do with advertising for claims relating to cancer and AIDS, two illnesses that drive people to the depth of desperation and therefore vulnerability.

I have no doubt that the ASA would defend the decision by saying that claims to help or cure or prevent cancer and AIDS still have to be substantiated, and this is true. It is also true that the ASA has over the last few years applied an extremely high level of scrutiny to substantiation. But the reality is that the system can be tricked, and I am distressed that these two diseases have been thrown in with the same standards applied to flu or verrucae of the feet (another Appendix F disease).

What bothers me even more is that this ruling of 16 August 2012 is, as far as I can ascertain, the first public statement about the resolution of the board. A resolution that has an enormous impact on countless advertisers who have been limited only because of Appendix F, despite holding excellent substantiation for their claims.

Quietly nursed this little secret

So, for six months, the ASA has just quietly nursed this little secret. There is no statement on its website. The last press release on the website is dated July 2011. I realise the ASA has frozen the position of communications manager in a cost-cutting effort, but I do think that a press release about Appendix F's death might have been appropriate. In fact - and this is the bit I absolutely love - Appendix F still appears on the website as part of the Code in all its glory!

Part of my irritation is probably ruffled pride - for the last six months I have been giving my clients inaccurate advice on this point - and I pride myself on my knowledge and up-to-date advice. But I am also deeply concerned that this is yet another symptom of an illness within the ASA.

It seems, and I may be wrong, that instead of following a process of amendment and thought, the ASA board buckled to external pressure and made a panicked decision the day after a difficult ruling, and then chose not to tell any of its stakeholders about the decision. I can only hope that, at the next AGM in September, the ASA consider where it has left advertising of treatments for cancer and AIDS, and makes a decision about whether it is going to be an organisation cowed by the Solals and Charlestons of this world, or not.

And possibly, at the end of it, it could issue a wee press release to let us all know.

For more:
    
 

About Gail Schimmel

Gail Schimmel is a specialist in advertising law. She runs a consultancy - Clear Copy (www.clearcopy.co.za) - that offers advice to marketers and advertisers in relation to the Advertising Standards Authority (ASA) and other aspects of advertising law. An admitted attorney (with BA, LLB, Psychology Honours and LLM degrees), she was previously head of legal and regulatory at the ASA, and subsequently joined Edward Nathan Sonnenbergs as a director in 2008. Email and follow @GailSchimmel.
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AnonASA
Dear Ms Schimmel.

It seems the illness at the ASA is even more serious than your initial expose as described by Mr Shoot on bizcommunity.com, see:

http://www.bizcommunity.com/Article/196/12/113667.html
and
http://www.bizcommunity.com/Article/196/12/114027.html
Posted on 2 Jun 2014 20:30
Roy Jobson
Roy Jobson
I am intrigued by Ms Schimmel's comment that Appendix F "has [...] prevented many complementary medicines from advertising treatment for arthritis and osteoarthritis, despite well-documented proof that their products do seem to offer some relief."

I would like to know what the ingredients of these products are; what Ms Schimmel considers to be "well-documented proof"; and what she means by "offer some relief." A great number of products for arthritis contain an ingredient called "glucosamine." When "intended for the treatment of primary and secondary osteoarthritis, osteochondrosis and spondylosis," glucosamine is a Schedule 3 substance according to the Medicines Act. This means that any product containing glucosamine intended for "arthritis and osteoarthritis" can be made available only with a doctor's prescription, and may not be advertised to the public.

As many if not most of the complementary medicines for "arthritis" contain glucosamine - their advertising restrictions have nothing to do with the ASA's Appendix F. Many such products are available as over the counter products in pharmacies and even in supermarkets, and many are widely advertised - in contravention of the Medicines Act. Presumably this does not apply to any of Ms Schimmel's clients' products. Of course there is nothing to prevent any such product from submitting an application to the MCC for registration as a medicine. Whether these products would have adequate data to support such an application is quite another matter.

I am (I assume) one of the "trio" of regular complainants referred to: "who seem committed to keeping the complementary medicines industry underground." This is a bizarre statement considering that there has been a tsunami of complementary medicines flooding the market - hardly an "underground" industry at all. Ms Schimmel would well know that in October 2010 the Minister of Health in a written answer to a parliamentary question stated that there were 155,000 such products on the market. Of concern is that he confirmed that none of these products had at that time had any independent testing of their quality, safety or efficacy verified by the South African regulatory authority for medicines - the MCC. Ms Schimmel would also well know that the Department of Health itself stated in its strategic plan 2009/2010 - 2011/2012 that unregulated complementary medicines are a serious public health risk. A few complaints to the ASA are not going to make a significant difference to this risk.

Note: I have laid a complaint with the ASA against the advertising of one of Ms Schimmel's clients' products.
Disclaimer: I am a Council member of the Allied Health Professions Council of South Africa. My comments are however made purely in my personal capacity and do not necessarily reflect the Council's or my employer's points of view.
Posted on 4 Sep 2012 13:49
Kevin Charleston
Ms Shimmel’s article is deficient in the truth in a number of places.

I am merely Mr. Kevin Charleston. I do not possess, nor have I ever claimed to possess, any qualification which would allow me to use the title “Dr.” – this simple fact could easily have been checked by the author.

The claim that I am “committed to keeping the complementary medicines industry underground” borders on defamatory. At worst, I am merely committed to ensuring that the advertisers and promoters of complementary medicines make claims they can prove. If they want to be labelled ‘medicines’ then they deserve to stand up to the efficacy, safety and quality controls of medicines. Otherwise they should be advertised as ‘magic potions’. Or is Shimmel suggesting that the claims made by complementary medicine manufacturers cannot withstand the light of day, or rather – of reason?

Perhaps Ms Shimmel is attempting to demonise me because she is acting on behalf of a complementary medicine manufacturer who failed to provide to the ASA sufficient substantiation for the claims they make? She certainly cannot make any claim to be objective in this case. Despite Ms. Shimmel’s apparent belief, the insistence by the manufacturer that their claim is true, coupled with a few cherry-picked and largely irrelevant studies, does not make it so.

Ms Shimmel appears to argue that AIDS and Cancer are the only things for which Appendix F should have been relevant. Cancer falls way below Heart Attack and Stroke as a cause of death in South Africa (http://www.mrc.ac.za/bod/faqdeath.htm) – why restrict it only to those two? Ms Shimmel points to the “SOLAL TECH : OMEGA 3 & 6 / K CHARLESTON – 16711” matter as the key point for the ASA Board to decide to strip Appendix F from the code – I would concur with that belief. That matter, which originated from an advertising claim that Solal’s products may prevent “heart attacks, strokes, arthritis, diabetes and depression” (http://www.asasa.org.za/ResultDetail.aspx?Ruling=5946) was heard all the way through to the Final Appeal Committee; and was defended there on my behalf because it was important not only for AIDS and Cancer.

Shimmel’s argument that Appendix F should not have applied to Osteo-Arthritis is a bit like me complaining that a particular street should not have the speed-limit it does when I get a fine for it. I didn’t draw up the list, it was there in the code. If the list isn’t right – then that is something that Shimmel, the CAM manufacturers, the ASA, and the MCC should have addressed that over the past few years. She makes it clear she was involved in discussions around it. Solal attacked the whole of Appendix F rather than accept that they had breached the code.

It isn’t clear how Ms Shimmel believes I could ‘cow’ the ASA into anything. All I have done in these matters is lay complaints when I believe the code has been transgressed. That most of the complaints have been upheld is an indication to me that my reading of the advertising code is reasonable. Solal, on the other hand, have received a number of upheld complaints – and their response has been to litigate, with a suit against the ASA in High Court, and a complaint to the National Consumer Council.

Note: Solal have also sued me – for this article: http://www.quackdown.info/article/health-intelligence-magazine-it-marketing-or-education/

It isn’t clear what seems to irk Ms Shimmel more? That adverts making claims for AIDS and Cancer may get published (they already do, the ASA can only get involved after the fact and the small advertisers don’t seem to care) or that her customers could have been doing so with gay abandon for the past 6 months?

When discussing the decision around Appendix F, it is also surprising that Ms Shimmel does not mention the Appendix A issue. Appendix A refers to medicines and health advertising – and it was changed, without notice, to no longer apply to complementary and alternative medicines. If you read the detail of the 16711 (Solal Omega 3 & 6) matter, it is quite clear that this appendix was changed in between the flighting of the advert and the complaint being decided by the ASA. I.e. advertising of real medicines must comply with a higher level of standards than those of complementary or alternative medicines. I didn’t see any comment from Ms Shimmel then, and we see no reference here. Perhaps that is because at least one of her customers is a large CAM manufacturer?

There are several things Ms Shimmel writes with which I agree. It is absurd that the ASA Board sat on this matter for 6 months with no comment; and that the website still reflects Appendix F as being part of the code. I immediately informed the ASA of my dismay that they could not at least have updated the website – and yet there it remains 3 weeks later. I am led to believe that the Directorate of the ASA was not aware of the board decision – and this is apparent when one looks at the Directorate’s rulings since February: several refer to Appendix F as if it were still in place.
Posted on 3 Sep 2012 19:26
Kevin Charleston
My apologies to Ms Schimmel - I see I have misspelled her name throughout the above comment.
Posted on 3 Sep 2012 19:29
Read more: ASA, ASA code review

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