ADVERTISING STANDARDS COMPLAINTS BOARD: Complaint about Flora
Pro-Activ
ADVERTISING
STANDARDS COMPLAINTS BOARD
DECISION
Meeting
28 February 2000-05-23
Complaint
99/312
Complainant:
V James
Advertisement
"Flora Pro-Activ"
Complaint: An advertisement for Flora Pro-Activ was
published in the New Zealand Listener. It stated in the headline above
the photograph of a man, "I spent years trying to lower my cholesterol
uptake. But in three weeks I actually did it." The copy proceeds to
describe the product, in particular stating "Plant Sterols occur in all
plants and have been shown to reduce cholesterol from being absorbed
into the bloodstream."
The Complainant said:
I wish to complain about an advertisement for FLORA PRO-ACTIV
margarine, which appeared in the NZ Listener (Box 90119,
Auckland) issue of November 27 — December 3, 1999:
The advertisement makes a therapeutic claim, which is governed by
the Medicines Act 1981. The Ministry of Health has ruled several times
that such claims are not allowed unless the product has been designated
as a medicine.
Such a claim is contrary to the Advertising Code of Practice.
It is required that full disclosure be made of relevant information
necessary to assist the consumer to make an informed choice, especially
of side effects. The Food Advisory Committee of the United Kingdom
government has recommended that products containing phyto-sterols
[Flora's manufacturers say they add sterols to the product] should
carry clear warning statements that they are unsuitable for young
children and pregnant or breast-feeding women. The "Listener"
advertisement does not do this.
In addition, claims that such products as phytosterol-supplemented
margarine can lower cholesterol have recently been challenged in the
medical press: a report in the British Medical Journal [17/7/99 vol
349. p186] showed that phytosterols in spreads had some
cholesterol-lowering effects in people eating "unhealthy" diets, but
not on people eating lower [i.e. containing the safe recommended 30%
energy-from-fat level] "healthy" diets. The study concluded that "in
those following a healthy fat-modified diet this costly product is
unlikely further to reduce lipid concentrations"".
Note: Further information was provided by way of attachments.
Relevant Provisions
Code for Therapeutic Advertising
Principle 1
Advertisements should comply with the laws of New Zealand and the
appropriate industry Code of Ethics.
Principle 2
Advertisements should observe a high standard of social
responsibility particularly as consumers rely on therapeutic products
and services for their health and well-being.
Principle 3
Advertisements should not by implication, omission, ambiguity or
exaggerated claim mislead or deceive or be likely to mislead or deceive
consumers, abuse the trust of or exploit the lack of knowledge of
consumers, exploit the superstitious or without justifiable reason play
on fear.
The Board was required to consider this advertisement in terms of
the Code for Therapeutic Advertising or more particularly Principles 2
and 3 of the Code.
The Board also referred to Principle 1 but was of the opinion that
the question of compliance or otherwise with the laws of New Zealand,
especially where an advertisement involved a therapeutic product, was
not a matter for the Board to determine, rather it was a matter for the
Ministry of Health.
The Board turned to the issue of whether the advertisement came
within the ambit of the Code for the purpose of this determination. It
considered the definition of a "Therapeutic Product" and noted that the
definition included "…any other product for which a therapeutic
purpose is claimed…". The Board also referred to the
advertisement and was of the view that the statement, "I spent years
trying to lower my cholesterol uptake. But in three weeks I actually
did it…" together with the copy, " Plant Sterols occur in all
plants and have been shown to reduce cholesterol from being absorbed
into the bloodstream…" did include a therapeutic claim for the
purpose of this determination.
The Board noted the advertiser's submissions but did not accept the
argument that as the Ministry of Health"…is satisfied that Flor
Pro-Activ does not contravene the Medicines Act… It is not a
therapeutic product, and the Code for Therapeutic Advertising does not
apply".
The Board reiterated the point that the Code deals with actual
advertisements, not products. The definition of "therapeutic purpose"
adopted by the Code in terms of this advertisement, is found in section
4(f) of the Medicines Act 1981 and states as follows:
"4. Meaning of "therapeutic purpose“ In this Act, unless the
context otherwise requires, the term "therapeutic purpose" means -
...
(f) "Otherwise preventing or interfering with the normal operation
of a physiological function, whether permanently or temporarily and
whether by way of terminating or reducing or postponing, or increasing
or accelerating, the operation of that function, or in any other
way".
The statements were therefore clearly therapeutic in terms of the
Code as a therapeutic purpose had been claimed.
The Board also referred to the preamble to the Code, which plainly
states that when interpreting the Code, emphasis will be placed on the
Principles and the spirit and intention. Accordingly, it was incumbent
on the Board to take the spirit and intention into account when
interpreting the Code and not take an unduly legalistic or literal
approach.
In terms of Principle 2 the Board was of the opinion that the
advertisement did not come within the Guidelines, which referred
expressly to "prescription medicines, restricted/pharmacist only
medicines - herbal remedies, dietary supplements, vitamins and mineral
supplements, - but rather within "any other product" referred to in the
definition. As with 'any other product' making a therapeutic claim it
is required to meet the straight forward demands and high standard of
Principle 2 of the Code.
The Board noted the advertiser's reference to a letter to the editor
in the British Medical Journal. It referred to the fact that "this
margarine spread may reduce cholesterol consumption" whereas the
wording in the advertisement was more emphatic stating that "plant
sterols have been shown to reduce cholesterol". The Board was also of
the view that the headline, "I spent years trying to lower my
cholesterol uptake. But in three weeks I actually did it," was not
congruent with the copy. It neither reinforced nor justified the claim
and was exacerbated by the fact the advertisement utilised what was, to
all intents and purposes, an unnamed fictitious testimonial. In terms
of Principle 2 the Board expressed concern that the statement might be
interpreted to imply that the product was a cure, rather than to be
used in combination with a healthy balanced diet. In this respect the
Board was of the opinion that the "testimonial" did not reflect the
high standard of social responsibility expected in therapeutic
advertising particularly as consumers could rely on these products for
their health and well-being.
In terms of Principle 3, the Board was of the view that although the
advertiser questioned the challenge made by the Complainant, no attempt
was made to actually substantiate the claim. Advertisers are required
to substantiate claims when challenged.
As such, it was the Board's view that the advertisement was in
breach of both Principle 2 and 3 of the Code for Therapeutic
Advertising.
The Board make the further observation that in this instance it may
assist the advertiser to seek direction from the Therapeutic
Advertising Advisory Service (TAAS) when preparing future
advertisements.
Accordingly the Board ruled to uphold the complaint.
Decision: Complaint Upheld
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