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					                                                                                       01/232




                                     DECISION

                                Meeting 26 November 2001


Complaint 01/232


                      Complainant: Hensley Mortlock – L. Mortlock
                      Advertisement: Unilever Australasia – "Flora Pro Activ"


Complaint: An advertisement for Unilever Australasia, promoting "Flora Pro Activ", was
screened on TV One. It portrayed a character named Tony Barr, aged 52 years, walking
onto an old bridge and reciting the following, "…My father was only my age when he
died…so when I found out I had a cholesterol concern I just thought, well I'm not waiting
for it to happen to me… So I started using Flora Pro Activ … which actually reduced my
cholesterol absorption…". During the recital Tony climbed over the barrier on the bridge
and stood briefly on the outside edge. This action was interspersed with religious images
denoting his father's death. He then leapt into the air and it was ultimately revealed that he
was attached to a bungy cord.




The Complainant said:




"I write on behalf of a client who considers there has been a breach of the Advertising Codes
of Practice by the advertisements for Flora Pro Activ Margarine.

The advertisement features a testimonial from Tony Barr who claims that because Pro Activ
Margarine reduces his cholesterol absorption he can now do all the things he wanted to do
for years and that he has eliminated the risk of dying prematurely like his father.

Our client considers that this message is misleading because:

1.     the reducing of cholesterol absorption has no effect on doing the things that Mr. Barr
       wanted to do - it is a ‗red herring‘.
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2.     the accumulated evidence is that total mortality is unchanged or possibly even
       increased when plasma cholesterol is lowered.

       Reference:     Reducing cholesterol does not reduce mortality
                      Journal of the American College of Cardiology Vol 12. No. 3
                      September 1988 : 814-7 (copy of which is attached).

3.     while there were some fine print cautions at the end of the advertisement, these were
       not readable.

       The Australia/New Zealand food standards code requires that marketing is
       accompanied by three mandatory advisory statements as follows:-

       •   A statement to the effect that the product should be consumed as part of a diet
           low in saturated fats and high in fruit and vegetables.

       •   A statement to the effect that the product is not recommended for infants,
           children and pregnant or lactating women unless under medical supervision.

       •   A statement to the effect that consumers on cholesterol-lowering medication
           should seek medical advice on the use of the product in conjunction with their
           medication."


Note: Additional information was annexed to the submission.




The Chairman ruled that the following provisions were relevant:




Code for Advertising of Food



Principle 2


"All food advertisements should be prepared with a due sense of social responsibility to
consumers and to society. However advertisements containing nutrient, nutrition, health or
therapeutic claims, should observe a high standard of social responsibility."


Principle 4
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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.

Guideline

(a) All nutrient, nutritional, health and therapeutic claims should be factual, not misleading,
and able to be proved. A high standard of substantiation is required, such as authentication
by ANZFA and/or appropriate government agencies or significant scientific agreement
among experts that the claim or message is supported by publicly available scientific
evidence.




The Advertiser said on behalf of itself and the Agency:




"Unilever Australasia would like to respond to your letter of 30 October 2001 enclosing
Lucy Mortlock‘s complaint letter in respect of the above television commercial (―TVC‖).

Unilever Australasia respects the Board‘s consideration that only item 2 of the complainants
letter be addressed as the other points made by the complainant have already been dealt with
in previous reviews of our TVC.

The specific issue raised by Ms Mortlock in item 2 argues that ―the accumulated evidence is
that total mortality is unchanged or possibly even increased when plasma cholesterol is
lowered‖. She cites a 1988 reference by author Michael Oliver, to support this statement.

The reference given is now 13 years old and evidence accrued in the meantime conclusively
supports the view that total mortality is reduced when plasma cholesterol is lowered. In fact,
the same author referred to above, Michael Oliver, acknowledged this in a commentary in
The Lancet in 1995 (copy attached)[1]. In this commentary he refers to two major studies of
cholesterol lowering in which death from all causes was reduced by 22 and 30 per cent [2,3].
Since the publication of this commentary another Two major studies, each demonstrating a
fall in deaths from all causes with cholesterol lowering, have been published [4,5]. This
issue is now established beyond doubt.



1.     Oliver MF. Statins prevent heart disease Lancet 1995;346:1378-9.

2.     Shepard J, Cobbe SM, Ford I et al. Prevention of coronary heart disease with
       Pravastatin in men with hypercholesterolaemia. N Eng J Med 1995;333:1301-7.
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3.     Scandinavian Simvastatin Survival Study Group. Randomised trial of cholesterol
       lowering in 4444 patients with coronary heart disease Lancet 1994:344:1383-89.

4.     Sacks FM, Pfeffer MA, Moye LA et al. The effect of Pravastatin on coronary events
       after myocardial infarction in patients with average cholesterol levels. N Eng J Med
       1996;335:1001-9.

5.     The LIPID Study Group. Prevention of cardiovascular events and death with
       Pravastatin in patients with coronary heart disease and a broad range of initial
       cholesterol levels. N Eng J Med 1998;339:1349-57.

In view of the above, we request that the complaint be dismissed."



Note: Additional information was annexed to the submission.




TVCAB said on behalf of the media:




"The complainant is concerned that — contrary to the message contained in this commercial
- total mortality is unchanged or possibly even increased when plasma cholesterol is
lowered.

Although the technical details of this matter would best be left to Nigel Andrews (TAPS)
and the parties, we understand that this claim is a minority view amongst the scientific
community. To fail an advertisement based on one thirteen year old journal report when the
majority of contemporary scientific research indicates the opposite view would not be a
reasonable position for us to take. Before approving this commercial, we were well advised
by Nigel Andrews of TAPS who has done extensive investigation into this area.




We are not convinced that the research submitted in fact substantiates the complainant‘s
claim. It appears the author‘s conclusions are not what the complainant would wish them to
be.

For example, the author concludes:
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    The reduction of elevated plasma cholesterol and modification of related atherogenic
    lipo proteins does not reduce mortality.

This is not saying mortality is ―possibly even increased when plasma cholesterol is lowered‖
as claimed by the complainant. In fact, the author adds that when the risk of ―non-fatal heart
attacks is high‖:

    [t]he case for its (elevated plasma cholesterol) reduction is clear and strong.

Therefore, we do not believe that the substantiation necessarily supports the complainant.
There is certainly no weight of accumulated evidence as stated by the complainant. Indeed,
the author of the article appears to see the benefits of reduction at least for some high
cholesterol sufferers.

As stated in previous responses to complaints against this Flora advertisement, it is our
opinion that the advertisement was prepared with the highest standards of social
responsibility. It is certainly not misleading or deceptive and in our view, the advertiser has
fully substantiated all the claims made in the advertisement.

For these reasons we do not believe the advertisement infringes the Code for Advertising
Food."




Deliberation




As a preliminary matter the Board confirmed that the only issue to be determined in relation
to this complaint was item 2 of the Complainant's submission which read, "the accumulated
evidence is that the total mortality is unchanged, or possibly even increased when plasma
cholesterol is lowered." In other words the Complainant alleged that the message contained
in the advertisement was incorrect, and therefore misleading to the public. The Board noted
that the evidence, cited by the Complainant, was a 1988 paper published in the Journal of
the American College of Cardiology, entitled "Reducing cholesterol does not reduce
mortality". The Board referred to the remaining issues raised by the Complainant, and in all
respects, was of



the view the claims had been substantiated in previous Board Decisions, including 01/199.

Therefore the Chairman directed the Board to consider this advertisement in terms of
Principle 2 and Principle 4 of the Code for Advertising of Food. The Chairman reminded the
Board that, pursuant to the Food Code, where an advertisement contained health or
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therapeutic claims, there was an overriding requirement for a high standard of social
responsibility.

Similarly in respect of Principle 4 and in particular Guideline 4(a) of the Code, the Board
reiterated that "… All nutrient, nutritional, health and therapeutic claims should be factual,
not misleading, and able to be proved. A high standard of substantiation was required, such
as authentication by ANZFA and/or appropriate government agencies or significant
scientific agreement among experts that the claim or message was supported by publicly
available scientific evidence…".

The Board referred to the evidence annexed to the Complainant's submission. It noted that
the paper, published by M.F. Oliver in 1988, was some 13 years old. The Board also noted
the 5 references advanced by the Advertiser and in particularly the subsequent paper written
by the M.F. Oliver in 1995. All 5 references postdated M. F. Oliver's original paper
submitted by the Complainant.

Having considered the advertisement, the submissions and the annexures, the Board
concurred with the Advertiser that the issue was now established, that lowering cholesterol
had demonstrated a reduction in mortality from all causes. Therefore in this instance the
Board was unanimous in the view that the Advertiser's evidence provided the high standard
of substantiation required by the Code. Similarly the advertisement was not deemed to be in
breach.

As a final point the Board noted that the complaint had been laid by a solicitor, on behalf of
a Complainant, and therefore the Complainant remained anonymous throughout the process.
The Board referred to the complaint's procedure and reiterated the need for transparency. In
the Board's view an Advertiser was entitled to know the Complainant's name. Although the
complaint proceeded without satisfying this criteria, the Board made it clear that in future,
without the inclusion of the Complainant's name, it would not determine a complaint.



Accordingly the Board ruled to not uphold the complaint.




Decision: Complaint Not Upheld
                                                                                      01/232
                                                                                  Appeal 02/4


                                      DECISION

                                   Meeting 21 May 2002


Complaint 01/232

Appeal 02/4

              Appellant: V. James
              Advertisement: Unilever Australasia - Flora ProActiv Margarine

Complaint: An advertisement for Unilever Australasia, promoting "Flora Pro Activ", was
screened on TV One. It portrayed a character named Tony Barr, aged 52 years, walking
onto an old bridge and reciting the following, "…My father was only my age when he
died…so when I found out I had a cholesterol concern I just thought, well I'm not waiting
for it to happen to me… So I started using Flora Pro Activ … which actually reduced my
cholesterol absorption…". During the recital Tony climbed over the barrier on the bridge
and stood briefly on the outside edge. This action was interspersed with religious images
denoting his father's death. He then leapt into the air and it was ultimately revealed that he
was attached to a bungy cord.

Relevant Codes of Practice:

Code for Advertising of Food

Principle 2

"All food advertisements should be prepared with a due sense of social responsibility to
consumers and to society. However advertisements containing nutrient, nutrition, health or
therapeutic claims, should observe a high standard of social responsibility."

Principle 4

"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."

Guideline (a)

"All nutrient, nutritional, health and therapeutic claims should be factual, not misleading,
and able to be proved. A high standard of substantiation is required, such as authentication
by ANZFA and/or appropriate government agencies or significant scientific agreement
among experts that the claim or message is supported by publicly available scientific
evidence."
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                                                                                      Appeal 02/4


The Advertising Standards Complaints Board, at its Meeting on 26 November 2001,
ruled to Not Uphold a complaint in which the Complainant, Hensley Mortlock, alleged that
the following message in the Advertisement, "the accumulated evidence is that the total
mortality is unchanged, or possibly even increased when plasma cholesterol is lowered" was
incorrect and therefore misleading to the public.


The Appellant stated in correspondence of 29 January:

"We write on behalf of our client who previously instructed us to make the complaint set out
in our letter of 28 August 2001. Our client now instructs us to appeal against decision 01/232
of 26 November 2001 but which we only received on 17 January 2002.

Our client believes that:

1.      the ruling is against the weight of factual and scientific evidence and that it fails to
        meet the over-riding requirement for a high standard of responsibility to the public.

2.      the advertising clearly implies that using Flora ProActiv will prevent or delay death
        for people like Mr Tony Barr (52 years old with a cholesterol concern).

Our client has asked us to send to you the enclosed recent review (a meta-analysis) in the
British Medical Journal (6 January 2001, Vol 322, pp 11-15) which says .... ―Modification of
diet is the first line intervention for hypercholesterolaemia, but as it has limited efficacy, a
rapidly growing number of people are taking cholesterol lowering drugs‖.

Our client says that:

1. the citations by the advertiser/agency to the Advertising Standards Complaints Board are
   not relevant because they all refer to drug treatment by new-type statins and they are not
   about dietary modification by sterol-added margarine.

2. the enclosed British Medical Journal meta-analysis reveals.... ―statins and other
   treatments have been found to differ significantly in their effects on non-coronary heart
   disease mortality.‖

3.   this British Medical Journal publication concludes that, although statins did not adversely
     affect non-illness mortality, the effects of other treatments is less clear. It also warns that
     dietary intervention and statin drugs... .―may induce subtle cognitive decrements‖.

4.      if the advertiser wishes to rely on literature about statin drugs as a precedent, then the
        advertising should disclose that huge class-action law-suits are in train in the USA
        and Europe over adverse effects of such drugs, including cognitive loss, heart attacks,
        liver failure and sudden premature deaths. Our client advises that a short internet
        search of statins (eg Baycol) will confirm this and that the University of San Diego
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                                                                Appeal 02/4
       Medical School even has a tracking programme for adverse effects here
       >>http//www.medicalreasoning .com/statins/sae aea.htm

Therefore on behalf of our client we request that the Board‘s Decision No 01/232 be
reversed, because our clients believe that their original contention that modification of diet
has only a limited efficacy and could increase mortality from other causes is factually and
scientifically correct."

The Advertiser, Unilever Australia, through its Solicitors, Bell Gully (Auckland)
said:

"We refer to your letter dated 17 April 2002. We have been instructed by Unilever Australia
to respond on its behalf to the submission on appeal from Hensley Mortlock in respect of the
above complaint.

The continuing anonymity of the appellant

By way of an initial procedural point, we note that the appellant remains anonymous.

The Board concluded the decision under appeal in 01/232 as follows:

        As a final point the Board noted that the complaint had been laid by a solicitor, on
        behalf of a Complainant, and therefore the Complainant remained anonymous
        throughout the process. The Board referred to the complaints procedure and reiterated
        the need for transparency. In the Board‘s view an Advertiser was entitled to know the
        Complainant‘s name. Although the complaint proceeded without satisfying this
        criteria, the Board made it clear that in future, without the inclusion of the
        Complainant‘s name, it would not determine a complaint.

That was a clear signal to the Complainant that our client is entitled to know who he or she is,
and that in future a complaint from an anonymous complainant would not be determined.

Despite that, the Complainant has now purported to pursue this appeal anonymously. In our
submission the ASCAB should decline to determine the appeal in those circumstances, for
the following reasons:

1.    It is a fundamental tenet of any complaints process that an accused is entitled to know
      who is the accuser.

2.    Thus, in relation to a complaint to the ASCB, the complaints procedure provides that:

      (a)   ―Complaints should be in writing, dated and signed by the complainant’.

      (b)   ―The Chairperson will determine whether the complaint is suitable for the
            Board‘s consideration and within the Board‘s jurisdiction. If it is, the complaint
            (including your name and address) will be sent to all parties concerned seeking
            their opinion and comment and you will be advised.‖ (emphasis added)
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                                                                                  Appeal 02/4
3.    There is no provision for anonymous complaints to be made.

4.    The ASCB has so ruled (correctly) in this very case; and the Complainant was
      accordingly expressly on notice, before pursuing the appeal, that complaints from
      anonymous complainants will not be determined.

5.    This is important not only for reasons of fairness, natural justice and transparency, but
      also to identify possible abuses of the complaints process; eg tactical complaints from
      competitors or vexatious complaints.

6.    It is of particular concern for our client to be dealing with an anonymous complaint
      and appeal in this case because the relevant products (plant sterol enriched margarines)
      have been the subject of a series of unsuccessful complaints which are now bordering
      on vexatious.

7.    It is important for the Board as well as for our client to know the identity of the
      complainant. We refer, for example, to the Board‘s decision in 01/307 (Sounds Music
      Stores) where the Board noted:

                As a final matter, the Board noted that this was the second time the
                Complainant had lodged a complaint in relation to this Advertiser (see
                previous Decision 01/193). Both complaints were similar and neither
                complaint was upheld. The Board made further comment that it considered in
                this instance the complaint was bordering on the frivolous.

8.    Clearly neither our client nor the Board can tell whether this complaint is from a repeat
      complainant if the complainant‘s identity is concealed.

9.    A further reason why both the Board and the Advertiser need to know the identity of
      the Appellant in this case is the fact that the complaint and appeal are based in part on
      opinions expressed by the Appellant on scientific matters. We are clearly entitled to
      know whether the Appellant is qualified to express such views.

10.   For all of the above reasons it is submitted that it is procedurally inappropriate and
      unfair to our client for this appeal to be determined in circumstances where the identity
      of the Complainant/Appellant continues to be concealed.

Our client respectfully seeks a ruling to that effect.

Without prejudice to that submission, we deal with the merits of the complaint below.

The complaint

The relevant aspect of the complaint (other matters having already been addressed by the
Board) is the contention that the advertisement was misleading because (according to the
Complainant) “the accumulated evidence is that total mortality is unchanged or possibly
even increased when plasma cholesterol is lowered’.
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                                                                                    Appeal 02/4
The ASCB Decision

The ASCB concurred with the Advertiser that the issue was now established, that lowering
cholesterol had demonstrated a reduction in mortality from all causes; and that the high
standard of substantiation required by the Code had been met (page 6 of the Decision).

The Appellant’s contentions on appeal

On appeal the Appellant‘s solicitors now:

1.    Contend that “the ruling is against the weight of factual and scientific evidence”.

2.    Rely on a paper from the British Medical Journal from January 2001.

The Advertiser’s submissions in response

The Appellant has only referred to a single paper in support of the appeal. That one paper:

1.    Does not represent ―the weight of factual and scientific evidence‖.

2.    Does not in any event contradict the studies previously provided by the Advertiser.

The position is:

The ―weight of evidence‖ has already been determined and supports the Advertiser

The efficacy of this product has previously been demonstrated and determined, and the
weight of scientific evidence clearly supports the Advertiser:

(a)   The Advertiser has submitted various substantiating material to the Board in relation to
      this and earlier complaints.

(b)   The Board has previously accepted that the claims made by the Advertiser have been
      substantiated. In its decision in 01/1 99, at page 6, the Board stated in relation to this
      product that:

                In the Board‘s view the claims made by the advertiser had been substantiated
                and this was reflected in previous Board decisions.

(c)   The ANZFA Statement of Reasons (referred to and accepted by the Board in the same
      decision) also confirms the claims made in relation to this product.

(d)   The Board has previously made it clear (01/199 at page 6) that:

      (i)    it is neither an arbiter of scientific data nor a judge on the efficacy of a product;
             and

      (ii)   it would be inappropriate for the Board to substitute its views for those of
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                                                                                   Appeal 02/4
            ANZFA.

(e)    The TVCAB approved the commercial after taking advice from Nigel Andrews of
       TAPS who has done extensive investigation into this area (refer TVCAB submission
       reproduced on page 4 of the ASCB Decision under appeal).

There is accordingly substantial scientific evidence supporting the claims made. It is
submitted that the Appellant has not demonstrated that the Board‘s ruling was “against the
weight of factual and scientific evidence”. To the contrary, the Board‘s ruling was entirely in
accord with the weight of evidence.

The paper provided by the Appellant does not in any event contradict that evidence

The paper by Muldoon et al in the British Medical Journal does not establish that ANZFA,
TAPS, the ASCB and the evidence referred to above are wrong.

The principal conclusion in that paper is “Currently available evidence does not indicate that
non-illness mortality is increased significantly by cholesterol lowering treatments.” That is
entirely consistent with the above evidence. The paper notes (on page 13) that “In this
updated meta-analysis we found that deaths from suicides, accident and violence were not
significantly increased among participants randomised to a cholesterol lowering intervention
compared with those in the control groups.”

While the paper also notes that “A modest increase may occur with dietary interventions and
non-statin drugs”, that comment is equivocal because the data was not statistically significant
(see page 13). Note also the following passages from the paper: “Whether non-illness
mortality increases with cholesterol reduction also remains unclear,” (page 11); “a recent
case—control study found that neither fatal nor non—fatal injuries were related to use of
cholesterol lowering drugs” (page 11); “These analyses also found no significant increases
in the odds of non-illness mortality associated with cholesterol reduction’ (page 13); and
“deaths from suicide, accidents and trauma are uncommon in randomised trials of
cholesterol reduction, and were less common than would be expected from population data”
(page 13).

It is also important to note that:

(a)    The paper is not a report of a scientific trial undertaken by the authors — it is an
       analysis of data sourced from other trials. The authors themselves recognise that the
       selection criteria for those trials may have influenced the results (see pages 13-14).

(b)    There is no indication in the paper that the minority of participants whose cholesterol
       was lowered by diet (as opposed to drugs) used plant sterol enriched margarine spreads
       to achieve that. It is not therefore clear that the paper has any relevance to the
       Advertiser‘s product.

It is submitted that this paper clearly therefore does not establish that the evidence relied on
by the Advertiser is wrong.
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                                                                                       01/232
                                                                                   Appeal 02/4
The relevant sections in the Advertising Codes of Practice

The relevant sections are Principles 2 and 4 and Guideline 4(a) of the Code for
Advertising Food.

The Advertiser made considerable efforts to ensure that this commercial would not only
observe a high standard of social responsibility but would also comply fully with the New
Zealand Advertising Codes of Practice in all other respects and with relevant legislation. The
TVC was thoroughly researched, reviewed and approved by consumers, health care
professionals, TAPS and the TVCAB.

Dr Timothy Sharp, University of Sydney, is a clinical psychologist who has reviewed the
research of psychological factors affecting people in cardiac rehabilitation. Following a
review of the TVC, initially at the animatic stage and then subsequently at the
post-production stage, he stated that:

         ―People are faced with two alternatives, they either take action to overcome their
         adversity or they give up. Positive messages emphasising that you can take control of
         your situation are extremely important‘
and:
         ―The Flora pro-activ advertising reinforces that while the topic of high cholesterol is
         serious, the focus is on the positive approach of actively doing something to manage
         cholesterol‖.

In New Zealand, nearly 12,000 lives are lost each year due to heart and blood vessel disease
amounting to 41% of all deaths annually (Refer National Heart Foundation press release,
Heart Week 2000). New Zealand also has one of the highest rates of heart and blood vessel
disease for developed countries - higher than Australia, Canada and the United States. It is
also well documented that high cholesterol is a major risk factor in heart disease which is the
single largest cause of death in New Zealand, especially amongst men.

Flora pro-activ is a margarine spread specifically developed for people with high blood
cholesterol, or for those who are concerned about their cholesterol. It contains naturally
occurring plant ingredients found in vegetables, nuts and seeds (plant sterols) that reduce the
absorption of cholesterol from the gut. There are over thirty published overseas clinical
studies proving the efficacy of the plant sterol enriched margarines.

On behalf of the media the TVCAB said in relation to this advertisement (Decision under
appeal at page 5) that:

         ―As stated in previous responses to complaints against this Flora advertisement, it is
         our opinion that the advertisement was prepared with the highest standards of social
         responsibility. It is certainly not misleading or deceptive and in our view, the
         advertiser has fully substantiated all the claims made in the advertisement.‖

It is submitted that the advertisement:

1.     Meets a high standard of social responsibility (Principle 2).
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                                                                                  Appeal 02/4

2.    Does not mislead or deceive, abuse the trust of consumers, or play on fear (Principle 4).

3.    Does not make any claims that are not capable of substantiation to a high standard
      (Guideline 4(a)).

Conclusion

It is submitted that:

1.    The Board was correct not to uphold the complaint.

2.    For all of the above reasons the appeal should not be upheld."


Television Commercial Approvals Bureau (TVCAB) said on behalf of the media:

"This issue seems to hinge upon the relative merits of various pieces of scientific research
regarding cholesterol reduction. We can only reiterate that (as mentioned in our submission to
Complaint 2001/232) our advice from TAPS adjudicator Nigel Andrews was that a sufficient
weight of evidence exists to support the advertiser‘s position.

We await the Board‘s decision with interest."


Deliberation


The Appeal Board referred to the advertisement, the initial complaint, the Complaints
Board's Decision, and the appeal documents in their totality.

As a preliminary matter, the Appeal Board addressed the issue with regard to the anonymity
of the Appellant, which was raised by Bell Gully, Barristers and Solicitors, acting on behalf
of the advertiser, Unilever Australia. The Appeal Board noted that this matter had been
raised in the deliberation of Complaints Board Decision 01/232 and that Hensley Mortlock,
solicitors for the Appellant, had in correspondence of 19 March, advised the Complaints
Board that its client was Valerie James. Unfortunately this information had not been
forwarded to Bell Gully. Accordingly, the Appeal Board reaffirmed that a very clear point of
natural justice was the fundamental right to know who was in fact making a complaint
alleging breach of a Code. The Appeal Board accepted the explanation that in this instance,
there had been an oversight, but stated that in future it would expect that all parties be
informed of the identity of the complainant and furthermore, that the identity of a
complainant be known before a complaint is accepted by the Complaints Board. The Appeal
Board restated that self-regulation, by its very nature, required a set of transparent
procedures to be established and it was very concerned to ensure that such procedures
continued in all areas.
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                                                                                       01/232
                                                                                Appeal 02/4
The Appeal Board then turned its attention to the substance of the appeal before it. It noted
that the primary issue raised by the Appellant was that the Complaints Board Decision was
against the weight of factual and scientific evidence and as such did not meet the high
standard of social responsibility required with regard to the advertising of therapeutic
products. In support of the appeal, a recent review (a meta-analysis) from the British
Medical Journal (6 January 2001, Vol 322, pp 11-15) had been enclosed. This said:

…"Modification of diet is the first line intervention for hypercholesterolaemia, but as it has
limited efficacy, a rapidly growing number of people are taking cholesterol lowering drugs."

The Appeal Board then referred to the original complaint submitted and noted that the
Complainant had been of the view that the advertisement featuring a testimonial from Tony
Barr was misleading because in it he claimed that Flora ProActiv, which contained natural
plant sterols (phytosterol esters), reduced his cholesterol absorption which consequently
reduced the likelihood of his premature death.

This had been stated in the original complaint (correspondence of 28 August 2001) in the
following terms:

"The accumulated evidence is that total mortality is unchanged or possibly even increased
 when plasma cholesterol is lowered.

Reference: Reducing cholesterol does not reduce mortality
           Journal of the American College of Cardiology Vol 12. No. 3
           September 1988 : 814-7 (copy of which is attached)."

The Appeal Board noted that the Complaints Board in its Decision 01/232 had ruled to not
uphold the complaint as in its view the claim made in the advertisement had been
substantiated in previous Complaints Board Decisions, including Decision 01/199 where the
Complaints Board stated:

    "In the Board's view the claim made by Unilever Australasia with regard to its
    product Flora ProActiv, had been substantiated and this was reflected in previous
    Board decisions. The Board also referred to the ANZFA Statement of Reasons
    (Application A410, 30 May 2001, 15/01) which stated under the heading 'Effect
    on cholesterol absorption',

           ' … the available human studies indicate that total plasma cholesterol
           was reduced by approximately 5% and LDL-cholesterol by 7 - 8%
           over a one year period by the consumption of edible oil spread
           containing 13.7%(w/w) phytosterol esters.'"

Accordingly, the Appeal Board was satisfied that the ANZFA Statement of Reasons, which
had been referred to and accepted by the Complaints Board in Decision 01/199, had
confirmed the claims made by the advertiser in relation to its product.
Therefore it was of the view that the Complaints Board had observed the requisite high sense
of social responsibility in reaching its determination in Complaint 01/232. Accordingly, the
current appeal failed on that point.
                                                16
                                                                                          01/232
                                                                                      Appeal 02/4

Furthermore, in coming to this conclusion, the Appeal Board noted that the Complaints
Board had taken into account the Court of Appeal judgment Electoral Commission v
Cameron & Ors, where the Appeal Court had reminded the Complaints Board that it was
expected to tread carefully and ensure that it did not in any way "…substitute its views for
those of an expert body charged with particular responsibilities…".

The Appeal Board further endorsed that it was neither the role of the Complaints Board, nor
the Appeal Board, to substitute their views for those of an expert body in any way. In this
instance ANZFA, which was empowered by statute, was such an appropriate expert body
and the claims made in the Flora ProActiv advertisement had been substantiated by ANZFA.

The Appeal Board acknowledged that the cholesterol reducing effects of phytosterol esters
was a matter which was still the subject of much scientific debate, and various publications
including the British Medical Journal, as submitted as part of the appeal, contributed to that
debate. However, notwithstanding that, both the Complaints Board and the Appeal Board
were bound by the Appeal Court judgment, not to substitute their views for those of an
expert body, and in this instance ANZFA was such an expert body.

The Appeal Board then referred to and endorsed the statements made in the Deliberation in
Complaints Board Decision 01/199 where, on page 6, it said:

"It is neither an arbiter of scientific data nor a judge on the efficacy of a product; and

it would be inappropriate for the Board to substitute its view for those of ANZFA".

Consequently the Appeal Board ruled that the Complaints Board, in consideration of
Complaint 01/232, had reached the correct decision to not uphold the complaint.


Accordingly, the Appeal Board ruled the appeal be dismissed.


Decision: Appeal Dismissed

				
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