A database that tracks dubious medical claims.
Response number: 99
Date of response: May 10, 2012
Type of response: ASA Directorate Ruling
The ASA found that claims by Patrick Holford about Smart Kids Brain Boost are unsubstantiated and have to be removed.
Claims dealt with in this response
- Claim no 54: Patrick Holford Improves Mental performance made on 2011-08-10 - Untested and implausible
The ASA ruling is here:
Smart Kids Brain Boost / HA Steinman & Another / 18565
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Equal Education Complainant(s)/Appellant(s)
More To Life (Pty) Ltd Respondent
10 May 2012
Consumer complaints were lodged against advertising appearing online and on radio for the respondent’s “Smart Kids Brain Boost” product. The online advertising appeared on http://holforddirect.co.za/products-and-research/#children. It showed an image of the product and stated as follows:
“SMART KIDS BRAIN BOOST® - Nourishment for developing brains
Is your child’s mind and memory sharp? Can your child concentrate and stay alert for a full hour? Many children struggle to keep up. The best way to nourish your child’s brain to promote learning, memory and focus is to ensure they have an adequate intake of:
• Phospholipids – the ‘intelligent’ fats
• Amino Acids – build neurotransmitters that act as ‘chemical messengers’
• B vitamins that help to promote mental vitality”.
The radio commercial formed the subject of the second complainant’s complaint. It states as follows:
“Would you like your child to be top of the class? My name is Patrick Holford and I have researched and formulated a supplement called Smart Kids Brain Boost that contains special phospholipids, B vitamins and amino acids that are vital for optimising the brain potential.
Patrick Holford Smart Kids Brain Boost is available from your pharmacy. It’s a no-brainer if you want your kid to be top of the class”.
The first complainant argued that there is no robust evidence to support the claims made on the website. He added that he was laying a complaint “... against the claims being made for the product, including the name of the product ‘SMART KIDS BRAIN BOOST’ which I argue is misleading”.
The second complainant argued along the same lines, explaining that there is no evidence that the product advertised will assist in improving scholastic or mental performance. It added that the radio commercial would likely influence or persuade children that they need this product in order to succeed at school, thus insisting that their parents purchase a product that has no proven efficacy. The possible hyperbole (when referring to “top of class”) would be lost on a child wanting to succeed at school.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
• Section II, Clause 4.2.3 – Hyperbole
• Section II, Clause 14 – Children
Stefan Vos Marketing Regulation Advisers (SVMRA), on behalf of the respondent, relied on verification from Prof Frederick J Veldman, and argued that Prof Veldman is a suitable expert because the claims relate to the discipline of dietetics and human nutrition.
It added that, on recommendation from Prof Veldman, it would amend its reference to “top of class” to refer to performing “... at the top of their own capacity / ability”. In addition, the claim made in relation to amino acids and B vitamins would be removed as well, in accordance with Prof Veldman’s confirmation that they are not directly supported by research findings. The reference to phospholipids, however, is in accordance with evidence and verified by Prof Veldman.
It concluded that “... it is an accepted fact that the nutritional status of a child affects his or her mental/ intellectual development, as confirmed by Prof Veldman, the amended claims, as well as the substantiated claims, are also not in breach of Clause 14 of Section II. Furthermore, the advertising material was at all times directed to children”.
A letter from and CV for Prof Veldman was also submitted, along with a “Review Article” from The American Journal of Clinical Nutrition, an untitled document explaining the rationale behind the claims used in the advertising, and what appears to be a summary of three published articles, one appearing to be the same “Review Article” as referred to above. This will be dealt with to a greater extent in the ruling where relevant.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The respondent effectively offered three undertakings:
It would remove the claim “Amino Acids – build neurotransmitters that act as ‘chemical messengers’ ...”;
It would remove the claim “B vitamins that help to promote mental vitality”;
It would amend the claim “…be top of the class” to refer to “Smart Kids could assist your child to perform at the top of their own capacity / ability”.
The ASA has a long-standing approach whereby unequivocal voluntary undertakings to remove or amend offending advertising can, at the Directorate’s discretion, be accepted as an adequate resolution to the matter without necessitating a consideration of the merits.
The first two undertakings arguably address the complainant’s concerns, thus negating the need for a consideration of the merits.
These undertakings to remove claims 1) and 2) above are therefore accepted on condition that the claims are removed with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
The respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide.
With regards to the reference to being “top of class”, the Directorate is not satisfied that the respondent’s proposed undertaking would address the concerns. Both complainants argued that there is no evidence to support the notion that nutritional supplements, and more particularly the respondent’s supplements, would boost scholastic performance. The first complainant pointed out that none of the studies purportedly relied on by the respondent were done on the respondent’s product or mix of ingredients, and in some instances the studies relate to ingredients that are not even contained in the respondent’s product. In addition, the second complainant specifically noted that “The claim that this supplement will improve the school performance of children is unsubstantiated and misleading”.
The Directorate is not convinced that the amendment would address the concerns, as the new claim simply implies that the respondent’s product would boost scholastic performance, as opposed to claiming that it would result in children sitting at the top of their class. These two claims are not sufficiently different for the Directorate to accept the undertaking.
As a result, the Directorate is unable to accept the undertaking tendered in 3) above, and will have to consider the merits of the complaints.
Given the above explanation, and given that the respondent has argued the merits of the matter in relation to the claim “Phospholipids – the ‘intelligent’ fats”, the Directorate has to determine whether or not these claims and implications are adequately substantiated.
It is also noted that the first complainant took issue with the name of the product, “Smart Kids Brain Boost” over-and-above general efficacy and substantiation.
Ordinarily, the first concern for the Directorate would be whether or not the expert relied on by the respondent was adequate in terms of the requirements of Clause 4.1 of Section II of the Code. However, given certain concerns about the actual verification offered by Prof Veldman, the Directorate does not need to determine this at this point in time.
It is trite that any opinion received from an expert has to be reasoned and motivated, and that the Directorate cannot simply accept the “say so” of an expert (refer the ruling of the Advertising Industry Tribunal (the AIT) in Lifebuoy / Dettol / 14813 (27 August 2011) for more detailed explanation). This means that the Directorate also has to apply its mind to the actual evidence relied on by an advertiser.
In addition, it is trite that the Directorate requires product-specific verification, given that the advertising at issue would relate the efficacy claims to the product as sold on the market. The proof therefore needs to relate to that product as a whole (see ruling under reference Solal Breast Protection Formula / R Jobson / 18707 (15 February 2012) for comprehensive explanation).
The verification from Prof Veldman does not appear to amount to much more than simply his “say so”. For example, with regards to the reference to “Phospholipids [as] the ‘intelligent’ fats”, he states:
“There exists a very strong association between these lipids and cognitive function, which is confirmed by a body of research. To state that these lipids are ‘Intelligent’ fats are [sic] therefore within the context of current research findings”.
This is the full extent of his verification, and in keeping with the AIT’s approach in the Lifebuoy matter, the Directorate cannot, at this time, simply accept it. Even if one were to assume that the relevant research article and summaries provided by the respondent substantiate this claim, no argument that this is the case was made and no indication was given as to where the research states this or illustrates this.
Equally, Prof Veldman’s verification of the implied claim that the respondent’s product would boost scholastic performance in children is little more than his “say so”. He states:
“The Smart Kids Brain Boost product, based on an evaluation of its ingredients and the synergy between these ingredients, certainly can assist a child to achieve his or her full mental / intellectual potential”.
Again, in keeping with the AIT’s ruling in the Lifebuoy matter, the Directorate cannot simply accept this at face value.
In addition to this, the Directorate notes that none of the literature supplied in support of the respondent’s claims appear to relate to the respondent’s product as it is sold in the market. This is problematic when considering the requirement for product-specific verification.
For the above reasons, the Directorate cannot, at this time, accept the substantiation submitted by the respondent. The advertising and relevant claims are therefore currently unsubstantiated and in breach of the provisions of Clause 4.1 of Section II of the Code.
As a direct result of this, the name of the product becomes problematic. It is noted that neither the respondent nor its expert addressed this issue as raised by the first complainant.
Objectively speaking, the Directorate is satisfied that the name “Smart Kids Brain Boost” creates an expectation that this product will boost mental performance and/or abilities in children. Clearly such an implied claim is capable of objective verification. However, as the respondent’s substantiation is not found adequate at this time, there is nothing before the Directorate to show that the name is justified and reasonable.
As a result, based on the lack of appropriate substantiation, the product name “Smart Kids Brain Boost” currently creates an unsubstantiated expectation, and is therefore in contravention of Clause 4.1 of Section II. By implication, the name is also currently misleading and in contravention of Clause 4.2.1 of Section II.
Given the above findings:
The respondent is instructed to withdraw the claim that phospholipids are “… intelligent fats …”, as well as any claims implying that this product would result in improved mental / scholastic performance, as well as the product name “Smart Kids Brain Boost”;
The respondent is instructed to start giving effect to this instruction immediately upon receipt of this ruling;
The respondent is instructed to ensure that the removal process is completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and
The respondent is instructed to refrain from making any claims of the above nature until such time as new substantiation has been submitted to the ASA, and it has been considered and a new ruling has been issued.
The complaints are partially upheld.
Given the above decision, it is not currently necessary for the Directorate to consider whether or not the provisions of Clause 14 of Section II have been contravened. In the event that new substantiation is submitted and accepted, however, this issue may still have to be resolved.