Flora ProActiv - ADVERTISING STANDARDS COMPLAINT

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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