DOES SOUTH AFRICA'S ADVERTISING REGULATOR REQUIRE LESS PROOF FOR TRUTH IN ADVERTISING THAN ITS BRITISH COUNTERPART?

Dear Readers,

Adv. Daniel Berger SC

          In 2018 Britain’s Advertising Standards Authority (ASA) ruled that Dr Kurt Wolff’s (Wolff) family business that makes Alpecin Caffeine Shampoo must cease advertising that this can reduce hair loss. This was initiated by a complaint from somebody who knew what they were talking about – a consultant trichologist or hair expert.

          Unfazed by this ruling the German manufacturer made a similar claim in its ads that appeared on South Africa’s DStv last year.

          Alerted by the British ruling I contacted Dana Lebowitz the marketing manager of ADOCO, the South African distributor. I asked her what independent evidence they had that showed this shampoo could reduced hair loss and penetrate the hair follicle, as claimed in the ads. She gave me the run around so I wrote a damning article on my blog in November 2019 saying that these claims were not true. (How true are adverts)

          To this day nobody from either the distributor or the maker has challenged the accuracy of what I wrote.

          Soon after my post appeared I lodged a complaint with our South African Advertising Regulatory Board (ARB) because I could not believe that advertising banned in the UK was appearing here in much the same form, unchallenged.

          In the ad a male voice tells viewers: “German engineering for your hair. If hair growth is waning, more and more men choose the caffeine shampoo by Alpecin. During hair washing the highly dosed Alpecin penetrates the hair follicle.”

          The gist of my complaint was that Wolff could not substantiate that the shampoo reduced hair loss and penetrates the hair follicle.

          The ARB Directorate concluded that Wolff had provided sufficient evidence to prove that caffeine does penetrate the hair follicle. So that part of my complaint was dismissed.

          Wolff countered the second more important aspect of my submission by saying its ad did not contain the claim that the shampoo “will reduce hair loss.” 

          Talk about splitting hairs. The Directorate however accepted that this was “implied” by the words “will have a positive effect on ‘waning hair’ or ‘hair loss.’”

          Significantly the ARB sent Wolff an email in January 2020 asking it to substantiate the claim that its shampoo would reduce hair loss. And when this was not forthcoming it upheld my complaint because according to its Code of Conduct advertisers must have documentary evidence to support all claims that are capable of objective substantiation, before ads are published.

          Not satisfied with this Wolff appealed to the Advertising Appeals Committee (Committee) headed by Advocated Daniel Berger SC.

          A new twist was added to the saga when Wolff now produced evidence to validate the “implied claim” that it had previously maintained the Directorate had been wrong to accept. The ARB does however allow new evidence to be submitted at the appeal stage.
          To make Wolff's argument even more ridiculous it continued to maintain that the advertisement "does not impliedly or expressly claim that the product will reduce hair loss."
          Why then did it submit evidence to proved that this is what it's shampoo did?

          Of the various studies Wolff presented, only one was considered relevant by the Committee as, unlike the others, it did mention Alpecin shampoo. Labelled Attachment I it was entitled: Use of Caffeine Shampoo for the treatment of Male Androgenetic Alopecia. In this an unnamed dermatologist confirmed that there had been a reduction of premature hair loss in the 30 men aged 18 to 55, who had been specially chosen to use this shampoo, with a reduction in balding in a significant percentage of them.

          “The product,” it stated, “showed a good cosmetic efficacy in the treatment of male androgenetic alopecia. The results in the pull test showed a decrease of 7.17% after 3 months and 13.15% after 6 months of treatment, of the number of hairs pulled out with pull test to indicate an increase of the resistance to the traction strain of the hair and a decrease of hair loss. These results improved going on with the product use.” The underlining appears to have been done by the Committee to emphasise what it considered important.   

          My inquiries indicated that this was one of the eight studies submitted to the British regulator when it decided to ban Alpecin’s ‘misleading’ advertising. Its comment on the pull test mentioned in this was: “We understood there were more robust methods of measuring hair loss available.” 

          “We can confirm that we did assess a study entitled Use of Caffeine Shampoo for the treatment of Male Androgenetic Alopecia in our Dr Kurt Wolff and Co march 2018 ruling,” Freddie Alcock at the ASA’s Media and Public Relations office told me.

          It was Attachment I that appears to have clinched the Committee’s decision that the shampoo did indeed reduce hair loss. It contained the only reference to hair pull tests in the 11 page report of the Appeals Committee Decision sent to me by the ARB. The second phase of my complaint thus went to the way of the first part, it was dismissed.

         So did a study that failed to convince the British regulator that Wolff’s advertising was kosher prove enough to do the opposite when it was submitted half a world away to South Africa’s ARB?

This was according to Business Insider SA in 2018

          Wolff had argued that the UK’s ASA decision was based on a strict standard of substantiation similar to that required for pharmaceutical products that was not common in Europe. In any event, as the Directorate did not consider the decision relevant to this South African case, the Committee did much the same thing.

          In banning the ad that appeared in Britain because of insufficient substantiation the ASA said: “Consumers would understand the claim to mean that using the product would result in a reduced rate and quantity of hair loss. Taking into account the body of evidence as a whole, we considered that we had not seen any studies of the actual product as used by consumers on their scalp using an accurate and objective analysis of hair growth, in a well-designed and well conducted trial.”

          Gail Schimmel the exceptionally efficient CEO of the ARB told me that the UK claim was slightly different to the South African one. The evidence Wolff submitted met the requirement of the Code of her regulator.

          “I am of the opinion that you got a well-considered, in depth decision that should leave you in no doubt as to the quality of our *self-regulatory process,” she added.

         Who is right, Britain’s advertising standards authority or South Africa’s? The consumer has been left to find out the hard way by first paying for the shampoo.

To answer the question raise in the headline to this post, the answer is: Yes, the ARB does require less proof than the UK’s ASA as this case showed.  

Regards,

Jon, a Consumer Watchdog, who can’t win them all.

P.S. The Wolff Company can only blame its poor public relations for my first report and some equally poor management for not submitting its full back-up story when the ARB initially considered my complaint.

P.P.S. In this case the ARB increased its inquiry costs unnecessarily by allowing the defendant to submit additional evidence to the Appeal Committee, when it had amply opportunity to do so at the initial hearing and was actually asked to do this, but chose not to.

*Note: the ARB is appointed and paid for by the South African advertising industry.