Complainant by X1OoHG9

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									            ADVERTISING STANDARDS COMPLAINTS BOARD
                                  PO Box 10-675 Wellington
                                   Telephone (04) 472-7852
                                   Facsimile (04) 471-1785
                                         Email asa@asa.co.nz
                                        Website www.asa.co.nz

                                                                                 06/470
                                    DECISION

                                Meeting 31 January 2007

Complaint 06/470


Complainant: L. James (Womens Health Organisation New Zealand) & Other
Advertisement: Jackel (NZ) Limited


Complaint: The Closer to Nature™ Tommee Tippee magazine advertisement showed a
baby’s bottle, complete with a teat.

A heading said:

Helping your
baby breastfeed
for longer.

A sub-heading said:

“The unique new teat that makes it easy to combine breast and bottle feeding.”

Wording below said:

“Designed in conjunction with breastfeeding experts, the revolutionary new
Tommee Tippee Closer to Nature teat mimics the natural flex, stretch and
softness of a mum’s breast, to make switching between breast and bottle
easier than ever before. With the unique anti-colic valve which you can
actually see working, it’s at the heart of an entire breastfeeding support
system which also includes a breast pump, sterilizers and accessories
specially created to help you combine breast and bottle feeding.

For further information on Tommee Tippee
products go to www.tommeetippee.co.nz or
Phone 0800 877 876”.


Complainant, L. James, (Womens Health Organisation New Zealand) said:

Where: Women’s Day Magazine
December 4, 2006
page 125
Who: Tommee Tippee
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Product: Infant feeding bottle

Complaint -
The advertiser is promoting their bottle as "helping your baby breastfeed for longer". The
research shows that introducing bottles has the opposite effect (Righard. Are breastfeeding
problems related to incorrect breastfeeding technique and the use of pacifiers and bottles?
Birth 1998 Mar;25(1):40-4.).

The Advertising Code of Ethics, Basic principle 4 states that "All advertisements should be
prepared with a due sense of social responsibility to consumers and to society". Tommee
Tippee has made a false claim which misleads the consumer to think that using their bottle
will help breastfeeding when research shows using bottles does the opposite.

Under the Code for Comparative Advertising it is stated that the advertisement "Should not
mislead the consumer about other products or services." The Tommee Tippee advertisement
misleads the consumer to believe that using their bottle will not have any detrimental effects
on breastfeeding.

As increasing breastfeeding is a goal of the Ministry of Health it is socially irresponsible for
advertisng to undermine breastfeeding.

Internationally it is well known that the advertising of bottles and teats is detrimental to
breastfeeding and as such is included in the scope of the International Code of Marketing of
Breastmilk Substitutes as a product NOT to be marketed.

Advertising of bottles and teats is bad enough in its self, however to make the claim that it
helps breastfeeding is unsubstantiated marketing language.”


A Duplicate Complainant shared similar views.


The Chairman ruled that the following provisions were relevant:

Code of Ethics

Basic Principle 4: All advertisements should be prepared with a due sense of social
responsibility to consumers and to society.

and

Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual
presentation or create an overall impression which directly or by implication, omission,
ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the
consumer, makes false and misleading representation, abuses the trust of the consumer or
exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is
not considered to be misleading).
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Code for Comparative Advertising

Guideline (a): Comparative advertising should be factual and informative and should offer a
product or service on its positive merits. The intent and connotation of the advertisement
should be to inform and not to discredit, disparage or attack competitors, competing products
or services directly or by implication.


The Advertiser, Jackel (NZ) Limited, said: “As supplier of the Closer To Nature range to
the New Zealand market under the Tommee Tippee brand, we would make the following
points in response.

     -     As a responsible brand owner and market leader Jackel NZ Ltd has a stated policy
           of always supporting breastfeeding. (and publicly state this fact).

     -     Our advertisement is headlined "helping your baby breastfeed longer" and makes
           reference to both breast and bottle feeding. The expression of breast milk is part
           of this system which allows breast milk to be fed by busy women (or fathers) via
           a teat/bottle that best simulates the breast. There is no suggestion that this system
           is a complete alternative to breastfeeding nor does it suggest mothers should
           cease breastfeeding. Further, there are many women who either cannot, or choose
           not to breastfeed and are not able to obtain information that enables them to
           choose the best alternative method.

     -     We therefore refute the accusations raised in both complaint letters and suggest
           their claims are suppressing the rights of mothers being presented with facts that
           allow them to make an informed decision. In our opinion there is nothing
           misleading in the advertisement nor does it anyway breach the relevant section of
           the Advertising Codes of Practice as suggested.

     -     L. James makes specific reference to the fact that we (and our English and
           Australian collegues) have not acted responsibly in the preparation of our
           advertisement. If by this she means that we are somehow promoting formula
           feeding (as opposed to breast milk) by the use of bottles then this is simply her
           interpretation and not our intention. Further, she states the one goal of the
           Ministry of Health is increasing breastfeeding but fails to mention that the
           Ministry also acknowledges the right of parents to make an informed decision
           about feeding their children.

     -     We stand by the advertising content which has been slightly modified from a UK
           campaign and is also running in Australia. There has been no local advertising
           agency involved in the creative and we have had no complaints to date. The
           advertisement was placed by Total Media Ltd Auckland.

     -     We have had several letters and emails from consumers who have complimented
           us on the effectiveness of the system two of which are attached.
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In summary we trust that common sense will prevail and that the right to continue this
campaign will be upheld. In this regard I quote from the Chen Palmer report.

"What women choose to do with their bodies is their business, and not the business of the
state…… The issue of breastfeeding is not one of medical or psychological ability but of
choice"

Please feel free to contact me should you require any clarification.”

(The Advertiser later added)

“There is little I can add to my original submission other than to say that all our
advertisements are prepared with a due sense of social responsibility to consumers and
society and in evidence of this in this particular case this advertisement was prepared in the
UK where it has run for more than 18 months without complaint and has also been used in
Australia with a similar outcome.

We have reviewed the 12 rules that apply to the basic principles in relation to this
advertisement and confirm we believe the content both visually and verbally to be within the
code.

It could infact be argued that it is due our sense of social responsibility that many women are
presented with information on a supplementary form of feeding in the event that they either
cannot or choose not to feed themselves, again not to mention fathers being involved in the
early feeding process.”


The Agency, Total Media, said: “Total Media's role in this advertising campaign was to
recommend the publications in which the advertisement should appear, and to negotiate the
relevant space, on behalf of our client (Jackel (NZ) Ltd).

Whilst we had no specific input in to the content of this advertisement, we did see and discuss
it prior to making our recommendations.

We do not believe, as has been suggested, that there is anything written or insinuated within
the copy that contravenes either the code of ethics or code for comparative advertising.

If you require any further confirmation please do not hesitate to contact me.”


The Media, ACP Magazines, said: “I am responding to your letters regarding the Tommee
Tippee advertisement that appeared in Woman's Day magazine.

ACP Media Limited is not in a position to comment on the content of the Tommee Tippee
advertisement. However, the Tommee Tippee advertisement was accepted for publication in
good faith and ACP Media Limited will abide by the decision of the Board in relation to the
advertisement.”
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D. Forsythe of the Advertising Advisory Services Ltd said: “I am responding to your
request for information about the current status of New Zealand advertising restrictions for
the advertising of infant feeding bottles and teats: also to comment on the issues raised in
connection with the above complaint.

International WHO Code

1.   The World Health Assembly adopted the World Health Organization Code for the
     Marketing of Breast-milk Substitutes (WHO Code) in 1981.

2.   The WHO Code calls on governments to give effect to the principles and aim of the
     international code, as appropriate to their social and legislative framework. including
     the adoption of national legislation, regulations or other suitable measures (Article
     11.1).

3.   The WHO Code recommends there should be no advertising or other forms of
     promotion to the general public within the scope of the code (Article 5.1). Feeding
     bottles and teats were included within the Scope of the WHO Code (Article 2).

4.   The NZ Minister of Health, when endorsing the principles and aim of the WHO Code
     in 1983, stated that the code would be adopted in this country through consensus and
     discussion rather than through legislation (1997 Infant Feeding Guidelines for New
     Zealand Health Workers).

New Zealand Interpretation of the WHO Code

5.   A Ministry of Health advisory committee monitored the WHO Code during the late
     1980's until it was disbanded in 1991. This panel, which had no formal status with the
     media or the Advertising Standards Complaints Board, upheld a complaint against a
     manufacturer featuring bottles of baby milk in a refrigerator television commercial. The
     controversial decision led to considerable public debate and the manufacturer
     eventually withdrew the commercial.

6.   Following a major review in 1996/97, the Ministry of Health in consultation with NZ
     Infant Formula Marketers Association (NZIFMA), agreed on the NZ Interpretation of
     the WHO Code. The NZ interpretation incorporates the NZIFMA Code of Practice for
     the Marketing of Infant Formula. which places advertising and promotional restrictions
     on infant formula products suitable for infants up to six months of age.

7.   The New Zealand distributors of infant feeding bottles and teats declined the request
     from the Ministry of Health to develop a voluntary and self regulatory code of practice,
     similar to the code developed by the NZIFMA companies. For this reason the Ministry
     of Health compliance panel has been unable to consider complaints received about the
     promotion of infant feeding bottles and teats. However, the majority of specialist infant
     feeding publications in the country, following pressure from breastfeeding advocates to
     follow the requirements of the international WHO Code, refuse to accept bottle and
     teats advertising.
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8.    My observation of bottle and teat advertising over the past 10 years is that the accessory
      companies are endeavouring to observe the spirit of the NZ Interpretation of the WHO
      Code by only promoting infant bottles and teats suitable for infants over six months of
      age.

International Marketing of Infant Bottles and Teats

9.    Apart from some Scandinavian countries, no voluntary or regulatory restrictions have
      been imposed in Western countries on the advertising and promotion of infant feeding
      bottles and teats. A recent European review of infant formula regulations did not
      include any measures to restrict the advertising and promotion of these accessory
      products.

10.   The Australian accessory product companies advertise infant feeding bottles and teats
      to consumers. The Advisory Panel for the Marketing in Australia of Infant Formula
      (APMAIF) does not monitor the marketing activities of the accessory companies.

Cup versus Bottle Feeding

11.   The purpose of the Tommee Tippee advertisement is to announce "A unique new teat
      that makes it easy to combine breast and bottle feeding". The advantage of this product,
      designed in conjunction with breastfeeding experts, is that mothers can use the same
      teat to provide both expressed breastmilk and formula to infants, thereby helping
      mothers to breastfeed for longer.

12.   Complainant L James refers to 1998 research, which shows that breastfeeding problems
      may be linked to the use of ‘pacifiers and bottles’. The complainant argues that the
      claim in the Tommee Tippee advertisement reading "helping your baby breastfeed for
      longer" misleads consumers to think that using their bottle will help breastfeeding.

13.   The complainant makes to no reference to the alternative to using infant feeding bottles
      and teats to provide expressed breastmilk to infants. The alternative is cup feeding,
      promoted by UNICEF as a more appropriate infant feeding method for expressed
      breastmilk than the bottle and teat. However, the Ministry of Health, in its "1997 Infant
      Feeding Guidelines for New Zealand Health Workers" makes reference to the
      controversy surrounding cup feeding, especially for "infants who have immature or
      impaired suck or swallow coordination because of prematurity or other reasons "

The Complaints

14.   In my view, the advertisement is not in breach of the following Basic Principles of the
      ASA Code of Ethics as argued by the complainants:

      All advertisements should be prepared with a due sense of social responsibility to
      consumers and society (Basic Principle 2)

      No advertisement should impair public confidence in advertising (Basic Principle 4)
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      The key message in the advertisement is that mothers, who are no longer exclusively
      breastfeeding their infants, should continue to breastfeed for longer by combining
      breast and bottle feeding. Infant feeding experts would all acknowledge that if mothers
      are unable to exclusively breastfeed, then it is important for mothers to provide their
      infants with as much breastmilk as they can, for as long as possible.

      By upholding the two complaints as a breach of the ASA Code of Ethics (Basic
      Principles 2 or 4), the ASCB would in effect be saying that it is ‘socially irresponsible’
      for the Tommee Tippee distributors, who are not signatories to the NZ Interpretation of
      the WHO Code, to advertise a product which helps mothers to provide breastmilk to
      their infants for a longer duration.

15.   I can see no justification at all for the claim that the advertisement is in breach of
      Guideline (a) in the ASA Code for Comparative Advertising.”


Deliberation

The Complaints Board perused the advertisement and reviewed all the correspondence
before it relating to the complaint. It noted the Complainants views that the advertisement
made a misleading claim in promoting a teat with the product claim “Helping your baby
breastfeed for longer.”

The Chairman directed the Complaints Board to consider the complaint with regard to Basic
Principle 4 and Rule 2 of the Code of Ethics.

The Chairman ruled that the Code for Comparative Advertising, did not apply, as the
advertisement did not identify a competing product or service of a commercial nature, and
accordingly it was not a comparative advertisement for the purposes of the Code.

Turning to Rule 2 of the Code of Ethics, the task before the Complaints Board was to
determine whether the advertisement contained any statement or visual presentation or
created an overall impression which directly or by implication, omission, ambiguity or
exaggerated claim was misleading or deceptive, or likely to deceive or mislead the consumer.
In accordance with its usual procedures it advised that should a claim in an advertisement be
challenged, the onus lay with the advertiser to substantiate that claim.

The Complaints Board took into account that the advertisement before it promoted “an entire
breast feeding support system”, to be used in conjunction with the “unique new teat”. It then
noted that the actual claim made in relation to the Tommee Tippee teat was: “Helping your
baby breastfeed for longer.” Accordingly, the Complaints Board said the onus fell with the
advertiser to provide evidence in support of that claim showing that the product advertised
did in fact help a baby breast feed for longer, also by defining the meaning of “longer” as
used in the advertisement. Was it longer than, for example, when using other bottle and teat
products or longer than a mother, who was not using the system advertised, may be able to
breast feed. The Complaints Board said the text in the advertisement did not support the
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hypothesis that the message was that mothers, who were no longer exclusively breastfeeding
their infants, should continue to breastfeed for longer by combining breast and bottle feeding.

 In its view, a reasonable interpretation of the advertisement was that bottle feeding and
breast feeding were interchangeable and complimentary methods by which to deliver breast
milk to a baby. As such, there was a degree of ambiguity in the advertisement which was
likely to mislead. As there was no support material provided in substantiation of the claim in
question, the Complaints Board had no option but to rule that the advertisement contained a
misleading claim which was in breach of Rule 2 of the Code of Ethics.

Also, as the issue of breast feeding was a health related issue for those concerned, the
Complaints Board was required to consider whether the advertisement met the due sense of
social responsibility required by Basic Principle 4 of the Code of Ethics. The Complaints
Board acknowledged that some women were unable to breast feed and some chose not to, and
that women had a right to choose an alternative method of feeding breast milk. Also, that for
a range of reasons, a mother may be absent from her child, making bottle feeding essential,
and in such circumstances the Tommee Tippee product could be useful. However, the
Complaints Board noted that the advertiser had not addressed the issue as to whether bottle
feeding decreased a baby’s aptitude to continue breast feeding, which complainant L. James
asserted, and whether the promotion of a bottle and teat undermined the goal of the Ministry
of Health, which advocated an increase in breastfeeding. Accordingly, the Complaints Board
ruled that the advertisement did not meet the requirement of Basic Principle 4 and was in
breach of that Basic Principle.

Accordingly, the Complaints Board ruled to uphold the complaint.

Decision: Complaint Upheld

* Please note that this decision is under Appeal.
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                                     DECISION

                                 Meeting 7 August 2007

Complaint 06/470

Appeal 07/009


              Advertiser / Appellant: Jackel NZ Ltd
              Advertisement: Jackel (NZ) Ltd
              Complainants: L. James (Women’s Health Organisation New Zealand) and
              L. Weatherly (Breastfeeding Advisory Services)



Complaint: The Closer to Nature™ Tommee Tippee magazine advertisement showed a
baby’s bottle, complete with a teat.

A heading said:

“Helping your
baby breastfeed
for longer.”

A sub-heading said:

“The unique new teat that makes it easy to combine breast and bottle feeding.”

Wording below said:

“Designed in conjunction with breastfeeding experts, the revolutionary new Tommee Tippee
Closer to Nature teat mimics the natural flex, stretch and softness of a mum’s breast, to
make switching between breast and bottle easier than ever before. With the unique anti-
colic valve which you can actually see working, it’s at the heart of an entire breastfeeding
support system which also includes a breast pump, sterilizers and accessories specially
created to help you combine breast and bottle feeding.

For further information on Tommee Tippee
products go to www.tommeetippee.co.nz or
Phone 0800 877 876”.
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Complainant, L. James, (Womens Health Organisation New Zealand) said:

“Where: Women’s Day Magazine
December 4, 2006
page 125
Who: Tommee Tippee
Product: Infant feeding bottle

Complaint -
The advertiser is promoting their bottle as "helping your baby breastfeed for longer". The
research shows that introducing bottles has the opposite effect (Righard. Are breastfeeding
problems related to incorrect breastfeeding technique and the use of pacifiers and bottles?
Birth 1998 Mar;25(1):40-4.).

The Advertising Code of Ethics, Basic principle 4 states that "All advertisements should be
prepared with a due sense of social responsibility to consumers and to society". Tommee
Tippee has made a false claim which misleads the consumer to think that using their bottle
will help breastfeeding when research shows using bottles does the opposite.

Under the Code for Comparative Advertising it is stated that the advertisement "Should not
mislead the consumer about other products or services." The Tommee Tippee
advertisement misleads the consumer to believe that using their bottle will not have any
detrimental effects on breastfeeding.

As increasing breastfeeding is a goal of the Ministry of Health it is socially irresponsible for
advertising to undermine breastfeeding.

Internationally it is well known that the advertising of bottles and teats is detrimental to
breastfeeding and as such is included in the scope of the International Code of Marketing of
Breastmilk Substitutes as a product NOT to be marketed.

Advertising of bottles and teats is bad enough in its self, however to make the claim that it
helps breastfeeding is unsubstantiated marketing language.”


Duplicate Complainant, L. Weatherly, shared similar views.


The relevant provisions in the Advertising Codes were as follows:

Code of Ethics

Basic Principle 4: All advertisements should be prepared with a due sense of social
responsibility to consumers and to society.

and

Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual
presentation or create an overall impression which directly or by implication, omission,
ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the
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consumer, makes false and misleading representation, abuses the trust of the consumer or
exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is
not considered to be misleading).

Code for Comparative Advertising

Guideline (a): Comparative advertising should be factual and informative and should offer a
product or service on its positive merits. The intent and connotation of the advertisement
should be to inform and not to discredit, disparage or attack competitors, competing products
or services directly or by implication.


The Complaints Board ruled to Uphold the Complaint at its Meeting on 31 January
2007

Part of the Complaints Board’s Deliberation said:

“… In its view, a reasonable interpretation of the advertisement was that bottle feeding and
breast feeding were interchangeable and complimentary methods by which to deliver breast
milk to a baby. As such, there was a degree of ambiguity in the advertisement which was
likely to mislead. As there was no support material provided in substantiation of the claim in
question, the Complaints Board had no option but to rule that the advertisement contained a
misleading claim which was in breach of Rule 2 of the Code of Ethics.

… the Complaints Board noted that the advertiser had not addressed the issue as to
whether bottle feeding decreased a baby’s aptitude to continue breast feeding, which
complainant L. James asserted, and whether the promotion of a bottle and teat undermined
the goal of the Ministry of Health, which advocated an increase in breastfeeding.
Accordingly, the Complaints Board ruled that the advertisement did not meet the
requirement of Basic Principle 4 and was in breach of that Basic Principle.”


Application for Appeal

Counsel on behalf of the Advertiser, wrote:

“
1. I confirm my instructions to act for Jackel (NZ) Limited ("Jackel NZ") in respect of the
   company's request for an Appeal of the Decision of the Advertising Standards
   Complaints Board (the "ASCB") upholding the above complaint (including one
   duplicate).

2. This letter outlines the substantive grounds of Appeal, the ASCB having been notified of
   the company's intention to Appeal the Decision within the 14 day period prescribed in
   clause 6 of the Second Schedule to the Constitution of the Advertising Standards
   Authority Inc.




DETERMINATION BY ASCB
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3. The ASCB ruled to Uphold the complaint having found, in relation to the Closer to
   Nature TM Tommee Tippee magazine advertisement, (the "advertisement"), that:

     3.1. "As there was no support material provided in substantiation of the claim in
          question ["Helping your baby breastfeed for longer"]" it "... had no option but to
          rule that the advertisement contained a misleading claim which was in breach of
          Rule 2 of the Code of Ethics"; and

     3.2. "...as the issue of breast feeding was a health related issue for those concerned
          ...the advertiser had not addressed the issue as to whether bottle feeding
          decreased a baby's aptitude to continue breastfeeding, which complainant L.
          James asserted, and whether the promotion of a bottle and teat undermined the
          goal of the Ministry of Health, which advocated an increase in breastfeeding.
          Accordingly, the...advertisement did not meet the requirement of Basic Principle 4
          and was in breach of that Basic Principle."

GROUNDS OF APPEAL

4. Jackel NZ seeks to Appeal the Decision on the following grounds; namely:

     4.1 There is new evidence of sufficient substance to affect the Decision; and

     4.2 The Decision is against the weight of evidence.

CONTEXT AND TERMINOLOGY

5. Jackel NZ is a responsible New Zealand company marketing an extensive range of
   multi-national products and, as previously advised, has a stated policy of always
   supporting breastfeeding (and it publicly states this fact).

6. Before specifically addressing the grounds of Appeal, Jackel NZ is concerned to put the
   complaint and the research article cited by L James in context and to draw attention to
   the apparent confusion over certain breastfeeding terminology used in differing senses
   both in New Zealand and overseas. In particular, the various interpretations of what
   constitutes "exclusive breastfeeding" appear to have muddied the waters and
   compromised the ability of Jackel NZ to properly advance its position before the ASCB.

7. It is acknowledged that the issues surrounding the practice of breastfeeding tend to
   attract extremely polarised viewpoints, ranging from the idealists who might advocate
   exclusive breastfeeding in the purest sense - where an infant receives breast milk only
   at the breast (i.e. not from a bottle or a cup or other method of feeding expressed breast
   milk) and for a period well beyond the four to six month period currently recommended
   by the Ministry of Health,1 to those arguably, unenlightened individuals, who might
   dismiss the practice as unnecessary or over-rated, with fair-minded pragmatists
   hovering somewhere in the middle - strongly supporting the mother's freedom of choice
   and her right to choose how best to nurture and feed her infant while balancing the
   competing demands of contemporary living.

8. There is no question that "breast is best." Jackel NZ unreservedly supports this position.
   In New Zealand, the Ministry of Health has stated it is committed to protecting and
   promoting breastfeeding as the normal method of feeding infants and that, "The overall
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    Ministry objectives for breastfeeding are to increase the prevalence and duration of
    breastfeeding in the entire population...The Ministry is committed to the ongoing
    application of the WHO Code to the marketing of Breast-milk substitutes in New
    Zealand. The WHO Code's aim is to protect infants' nutritional wellbeing...Breastfeeding
    should be encouraged and protected from practices that undermine it."2

9. However, it is submitted that the advertisement clearly conveys the message and overall
   impression that breastfeeding is beneficial for baby - both through the key message
   "Helping your baby breastfeed for longer" and by promoting, inter alia, a teat "Designed
   in conjunction with breastfeeding experts" and "... an entire breastfeeding support
   system which also includes a breast pump, sterilizers and accessories..." . The
   emphasis is overwhelmingly on maintenance of breastfeeding and on mothers
   continuing to feed their infants breast milk. The advertisement makes no reference
   whatsoever to feeding infants with formula.

10. Given the New Zealand interpretation of "Exclusive Breastfeeding" promoted by the
    Ministry of Health3 is when "...the infant has never, to the mother's knowledge, had any
    water, formula or other liquid or solid food. Only breast milk, from the breast or
    expressed and prescribed medicines have been given from birth' (Ministry of Health
    2002)" [emphasis added], bottle feeding of expressed breast milk to infants clearly falls
    within the ambit of exclusive breastfeeding.

11. Jackel NZ acknowledges the position promoted by the complainant, L James, as being
    both laudable and aspirational in many respects. However, the company respectfully
    submits that the selective comments she made in support of her complaint were made at
    the expense of - and out of sync with - the more moderate position held by mainstream,
    contemporary New Zealand mothers who seek to achieve a work/life balance by
    breastfeeding at the breast wherever and whenever possible and feeding expressed
    breast milk when this is not possible or practicable.

12. In particular, Jackel NZ notes that, in the main text of her complaint, L James:

         Overwhelmingly made reference to the use of bottles per se and only once to
          teats [in relation to the advertising of bottles and teats which remains a legitimate
          activity in most Western countries] and did not address or acknowledge the other
          key components of the complete breastfeeding support system being advertised
          by Jackel NZ - notably the breast pump, sterilizers and accessories;

         Omitted to distinguish between bottle feeding with expressed breast milk and
          bottle feeding with formula or both and made no reference to the important and
          prevalent practice widely used by mothers, fathers and carers of bottle/cup or
          other methods of feeding expressed breast milk to infants when feeding at the
          breast is not possible or practicable;

         Volunteered no comment as to how the relatively recent advent of the "unique"
          and "revolutionary" Tommee Tippee Closer to NatureTM teat in 2005, which teat
          mimics a mothers breast in a way that defies meaningful comparison with any
          mainstream teat available in 1998, may render the research cited less persuasive
          and/or reliable than she led the ASCB to believe.

13. Of note in the 1998 research cited by L James, references to exclusive breastfeeding
    excluded mothers who chose to use a breast pump and give their own milk by bottle.
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    This is at odds with the New Zealand position and, it is submitted, casts further doubt on
    the propriety of relying on, or, at least of according significant weight to, the research
    findings for the purposes of determining this Appeal.

NEW EVIDENCE

14. Jackel NZ submits the following new evidence in support of its strong contention that the
    advertisement does constitute a legitimate and "Truthful Presentation" within the
    meaning of Rule 2 of the Code of Ethics and was prepared with a due sense of social
    responsibility to consumers and society in accordance with Basic Principle 4 of that
    Code, namely:

     14.1.    Statement dated 18 April 2007 by Alison Brown, R.G.N, R.M. - a practicing
         Midwife in the NHS and the Health Professional Liaison Manager for Jackel
         International Ltd based at Newcastle, Lincolnshire, England - unquestionably
         supports the claim "Helping your baby breastfeed for longer" and states, inter alia,
         that:

              "Significantly, the system has helped other mothers who would otherwise
              have resorted to solely formula feeding at a much earlier stage, to continue to
              provide breast milk for longer..." - enclosed and marked "A";

     14.2.    Decision of the UK Advertising Standards Authority dated 22 June 2005
         - the UK ASA ruled on a Jackel International Ltd Tommee Tippee magazine
         advertisement promoting a product, which was the forerunner to the Closer to
         NatureTM bottle and teat. The ASA did not uphold the 2005 complaint in a
         number of key respects where the copy content was similar to the New Zealand
         advertisement under review - including an allegation that "...the advertisement
         was irresponsible because it could discourage mothers from breast feeding their
         baby'. The only aspect found to be in breach related to the claim, "... it's designed
         to reduce the risk of colic symptoms", does not appear in the New Zealand
         advertisement - enclosed and marked "B".

         It is noted that while the "Closer to NatureTM" series, including the advertisement
         under consideration, has been running in the UK since July 2005, the UK ASA has
         not had cause to consider any complaints made against Jackel International Ltd
         advertising since June 2005.

         The UK Decision concerned an advertisement that included the wording "There's
         no substitute for breastfeeding. But there are times when you may choose to
         bottle-feed or combine both." While the New Zealand advertisement does not
         expressly include the statement "There's no substitute for breastfeeding", it is
         submitted that the comprehensive emphasis throughout the advertisement on the
         importance of breastfeeding (and of breastfeeding for longer), conveyed, inter alia,
         through:

                  the primary message, "Helping your baby breastfeed for longer"; and

                  the further references in the body copy to being;

                       o     "Designed in conjunction with breastfeeding experts;" and
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                  o     "An entire breastfeeding support system"

 the reference to the use of "... a breast pump, sterilizers and accessories specially
  created to help you combine breast and bottle feeding" [strongly suggesting
  combining bottle feeding of expressed breast milk with breastfeeding at the breast]

    strongly reflects the company's stance - that there is no substitute for
    breastfeeding but that it is possible to combine bottle and breastfeeding. Notably,
    the advertisement does not imply that bottle-feeding is equivalent or superior to
    breastfeeding but seeks to impart the improved ease of combining the two
    methods. The overriding intention of the advertisement was to provide a solution
    for mothers with difficulties breastfeeding not an alternative to breastfeeding -
    freedom of choice within breastfeeding.

14.3.    Further Unsolicited Testimonials From Satisfied Users - Presently, Jackel
    NZ does not have a mechanism set up on its website to prompt consumers to
    contact the company with feedback. However, irrespective of this, Jackel NZ
    instructs that consumers are finding ways to email the company and let it know
    what they think about the new Tommee Tippee range. Set out below are
    examples of typical emails Jackel NZ has received from both Australian and New
    Zealand consumers, which are highly complimentary about the suitability of the
    new product range for combining breast and bottle-feeding:

 "I love the new Tommee Tippee Closer to Nature bottle. I'm breastfeeding as well
  as giving a bottle to my 10 week old baby. The teat is so similar to the breast my
  baby wouldn't know the difference between the two. Very happy mum and bub!"
  Julia Morrison, Annandale NSW

 "I just wanted to say a huge THANK YOU! for designing this range. As a second
  time Mum I worried about weaning my son as we had terrible trouble weaning his
  older brother. My husband and I found it extremely hard to feed Cooper expressed
  breast milk from ANY of our existing bottles, we tried everything, about 100 different
  teats, different sized bottles you name it we tried it, we even tried to feed him from a
  cup!!, until I found your product. I bought a pack of 260m1 bottles, washed and
  sterilized them, put some expressed breast milk in and he didn't even
  struggle, just closed his eyes and drank away! I couldn't believe It worked 1st
  time! I have recommended your Closer to Nature range to everyone I know!!!
  Thank you for making it easier for me to include my partner in feed time, and also
  thank you for making it easier for our precious babies to feel comfortable during
  feeds. Thanks so very much." Angalene & Marc Ronan, NZ

 "I love the Tommee Tippee Closer to Nature bottles and teats. The design is
  genius. My son had no problems with nipple confusion when i had to express
  to go back to work. Not like other brands and types of bottles." Amanda Le,
  Kewdale WA

 "The Closer to Nature range is just that - I didn't want to have to bottle feed at all,
  but needed to one day and having the range already made life that bit easier
  for my beautiful baby and me - as well, no problems swapping back to breast!
  Thank you." Jo Rose Duval, Auckland NZ
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       "In July we had a wee baby girl and she came to us 5 weeks early, as she was a
        prem baby she had problems feeding from the start we have been mix feeding her
        as she has a week suck and under developed jaw muscles. We have gone through
        a few different brands of bottles to see which ones she would take and I recently
        discovered the new Tommee Tippee closer to Nature range and they are
        fantastic!!!! She loves the teat as it is the most breast like one I have see out on
        the market and she finds the soft silicone teat easy to suck from. I would
        recommend this product to any mum out there wanting to make a smooth
        transition from breast to bottle!!! I only wish I had found this product earlier." Ayn
        Harris NZ

       "I would like to say thank you very much for a perfect product. My baby has fussed
        and fussed with bottles, until I came across the closer to nature range (because I
        am still breast feeding) it is perfect she didn't even know the difference. I have
        even recommended your closer to nature bottles to parents at my mothers childcare
        centre, once again thank you thank you thank you." Sally-Anne Samson, Seymour
        VIC.

15. It is submitted that the unsolicited expressions of consumer satisfaction with the product
    range, in combination with the information provided in the advertisement on an
    alternative form of breastfeeding for mothers who cannot or choose not to exclusively
    breastfeed baby at their breast, provides Jackel NZ with strong justification to make the
    claim "Helping your baby breastfeed for longer"- particularly given these mothers,
    according to their own testimonials and as a matter of common sense, may well have
    given up feeding their infants breast milk and have switched to formula or a combination
    of formula and breast milk if not for the advertised breastfeeding support system.

16. In terms of the weight to be accorded to the unsolicited testimonials it is submitted that it
    would be appropriate for the Board seized of this matter to regard the testimonials as
    both credible and reliable and as adequate evidence supporting the experiences
    volunteered regarding use of the product. Moreover, while the ASCB has been
    somewhat reluctant to regard the claims of satisfied customers as sufficient
    substantiation, it is noted that this has frequently been in cases where the advertisement
    under consideration has been required to observe a high standard of social
    responsibility - refer Decision 01/249 - which standard does not apply in this case. It is
    further submitted that it would not unreasonable for the Board to place due reliance on
    these unsolicited emails as, in a very real and pragmatic sense, it can be argued that the
    best evidence must originate from the mothers.

WEIGHT OF EVIDENCE

17. Jackel NZ submits that the evidence provided in response to the complaint (inclusive of
    the duplicate complaint), when considered in its entirety:

      17.1.   Provides adequate substantiation of the qualified claim "Helping your baby
          breastfeed for longer"; and

      17.2.   Meets the requirement of Basic Principle 4 of the Code of Ethics requiring a
          due sense, as opposed to a high standard, of social responsibility to consumers
          and to society.
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18. It is widely recognised that expressing breast milk ordinarily helps mothers to lactate for
    longer than in cases where a mother either chooses not to, or is unable to, breastfeed
    her baby at her breast. It is submitted that the advertisement actively encourages
    mothers to continue breastfeeding, and for longer, and that this is reinforced by the New
    Zealand interpretation of what constitutes exclusive breastfeeding.

19. In all the circumstances, and in view of the questionable application of the 1998
    research cited by L James to the contemporary Tommee Tippee breastfeeding support
    system being promoted in the advertisement, Jackel NZ respectfully submits that, in its
    view, the ASCB:

     19.1.   Attributed undue weight to L James' assertions citing the Righard research in
         support and to her claim that the advertisement undermines breastfeeding - which
         claim continues to be vigorously refuted by Jackel NZ;

     19.2.   Accorded undue weight, and arguably, became overly concerned with, issues
         raised by the complainants which would not be readily apparent to the average
         consumer - remembering that the ASCB has a practice of considering all
         complaints about advertisements from the point of view of the consumer;

     19.3.    Failed to accord sufficient weight to the fact that virtually identical advertising
         has been running in the United Kingdom without complaint for a significant period
         of time - noting that in this jurisdiction the applicable advertising standards are
         comparable to those contained in the New Zealand Code of Ethics;

     19.4.  Applying the rationale earlier referred to in relation to the new evidence
         comprised by the unsolicited emails, failed to accord sufficient weight to the
         consumer information provided to it by Jackel NZ;

     19.5.   Misdirected itself by effectively requiring Jackel NZ to observe a high standard
         of social responsibility in its advertisement rather than the requisite due standard
         of social responsibility specified in the Code of Ethics. In particular, it is submitted
         that the content of the advertisement clearly demonstrates it was prepared with a
         due sense of social responsibility. As a general rule, what is socially responsible
         depends on the context, medium, audience and prevailing community standards -
         which standards are in a constant state of change - and, it is submitted, must
         properly take into account the fact that not only is the practice of breastfeeding a
         priority but that the practice itself is evolving.

CONCLUSION

20. In all the circumstances, Jackel NZ accordingly requests that its Appeal be Allowed.

21. Alternatively, in the event of the Chairman ordering a rehearing of this complaint by the
    ASCB, Jackel NZ respectfully seeks that the complaint (including the duplicate
    complaint) be Not Upheld.”

Two appendices were attached to the application and also considered.
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The Acting Chairman of the Complaints Board was of the view that the application
raised sufficient issues to be accepted, fulfilling in particular the following ground for an
appeal to proceed.

“Rule 6. Appeal

(a)(ii) There is new evidence of sufficient substance to affect the ruling.”


Accordingly, a copy of the appeal submission was forwarded to the Complainants for their
comments.


Responses to the Appeal


Complainant, L. James said:

“Thank you for the opportunity to write to the appeal made by A. Sutton on behalf of Jackel
NZ Ltd for the upheld complaint on the advertising of the Tommee Tippee magazine
advertisement.

I note that new evidence has been put before the panel to attempt to substantiate the claim
that Tommee Tippee's feeding system does help your baby to breastfeed for longer. I would
like to make the following points regarding the `new evidence'.

           Comparing what happens in New Zealand to what happens in the UK is of
            interest to me, as the breastfeeding rates in the UK are well known for how low
            they are in comparison to New Zealand. It would be beneficial for the UK to take
            note of what New Zealand is doing and replicate us rather than the other way
            around. According to the Department of Health infant feeding survey ('Infant
            Feeding 2000') the percentage of UK mothers who breastfed initially is as
            follows:
            UK Total = 69%
            England & Wales = 71%
            Scotland = 63%
            Northern Ireland = 54%1
            On the other hand New Zealand's initial rates are: 88%2

           The new evidence is merely a statement by a midwife who is employed by the
            advertisers. This statement therefore is subjective and questions the validity of
            what is written. Point four of her statement says "In my view, and experience."
            This would not stand up as quality evidence even in a literature review on the
            subject.

           I am part of a team that has been doing qualitative research on breastfeeding
            and working and I have had the opportunity to interview many mothers on
            expressing and bottle feeding. The evidence supports breastfeeding success as
            the coming together of the mother and infant for feeds rather than using
            expression, bottles and teats, however clever the designers of that equipment
            may think they are.3
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In conclusion I ask that the original ruling be kept as the new evidence is not substantial
enough to show that the Tommee Tippee bottle and teat are able to "help your baby to
breastfeed for longer".


1
  Retrieved 23 May from http://www.idfa.org.uk/ff_full.aspx?cat=1&id=12
2
  Heath et al. (2002). A longitudinal study of breastfeeding and weaning practices during the
first year of life in Dunedin, New Zealand. Journal of American Dietetic Association. 102(7),
937-43.
3
   Payne, D., Berman, S., Sturmfels, B., James, L., Leatham, B., & Van Der Poi, N. (2006).
Women's experiences of infant feeding and work. Breastfeeding Communique. 17, pp 23 -
26.”


Complainant, L. Weatherly, said:

“Thank you for the opportunity to respond to the ASA Appeal Board regarding the above
complaint and appeal and for providing us with the New evidence and Weight of Evidence.

Breastfeeding Advisory Services were pleased that the Authority upheld the above
complaint, and are disappointed that Jackel NZ is pursuing an appeal. We continue maintain
that the advertisement is misleading to the public and breaches the Advertising Code of
Ethics.

We will address what we consider to be the most important discrepancies in the appeal
material:

1.   Our response to the 'New Evidence' and Weight of Evidence'

1.1 In the New Zealand context the company's advertising complaints history in other
countries is of no relevance. Of interest however, we note that the UK has significantly lower
breastfeeding rates than New Zealand and that the United Kingdom Breastfeeding
Manifesto, a collaborative work by over twenty UK organisations including the UK
government, WHO and the Royal Colleges of Nursing and of Midwives, was launched last
week . Objective 7 of the Manifesto is to adopt the World Health Organisation International
Code of Marketing of Breast Milk Substitutes and subsequent relevant Resolutions (The
Code). The Code covers the marketing not only of breast milk substitutes ie infant formula,
but also of bottles and teats. We include this information, because we beleive that it
highlights that the supporting organisations to the manifesto recognise the detrimental effect
that non- vigilance to misleading marketing practices has had on breastfeeding rates in their
nation.

1.2 Ms Brown is correct in her statement that 'the reasons as to why bottles, teats and
soothers are introduced are very complex and far-reaching' But again, the UK situation is not
relevant to this discussion. We also submit that

          Ms Brown's position as an employee of the Jackal family of companies
           constitutes a conflict of interest, and that as such her statement should be
           disregarded

          that although holding the position of 'Health Professional Liaison Manager' for
           Jackal Intl Ltd, Ms Brown has not an actual breastfeeding qualification (Midwifery
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            curricula generally provide basic training around breastfeeding, however not of a
            level which would qualify Ms Brown as an 'expert').

           Ms Brown's statements are opinion, and contradictory to the significant body of
            international evidence about the risks to breastfeeding of using bottles and teats.

1.3 We submit that the 'Tommee Tippee Closer to Nature' (TTCN) bottle and teat does no
more than any other brand of bottle and teat, but potentially makes the process of feeding
MORE difficult and dangerous to the baby.

During March and April we provided assistance to two women who were using the TTCN
bottle and teat. In both cases the mothers were having difficulties breastfeeding otherwise
normal babies which we were assisting them to resolve. Both were giving supplementary
feeds via the TTCN bottle and teat- one using expressed milk, the other infant formula. Both
babies, when bottle feeding, appeared to arch their back, throw their head back to an
alarming degree and behave very irritably while trying to suck. According to safe practice the
babies had been offered a small supplement of 20 ml or so, which is recognised as the
safest way to maintain normal appetite and foster continued breastfeeding. When this small
amount was offered in the TTCN bottle it had to be tipped completely upside down to get the
milk into the teat (due to the width of the bottle). At this angle it is very difficult to offer the
bottle in such a way as the baby recieves the teat onto the hard palate (to facilitate correct
sucking) as well as ensuring that the baby is not sucking air instead of the supplement. The
two babies in question had to be laid completely horizontal to achieve a teat - palate
connection, a posture which is unsafe as it potentially facilitates milk seepage into the
immature eustachian tubes of the infant, predisposing to ear infections. (Horizontal
breastfeeding does not pose the same risk due to the way the breast fills the oral cavity and
milk only flowing when the baby sucks as opposed to a bottle teat which generally drips even
when the baby does not suck.)

1.4 It is well-recognised that only the most motivated and supported mothers will continue to
pump for weeks or months to supply her baby's needs. Unfortunately, how a mother
chooses to feed her baby is significantly influenced by the widespread marketing practices
such as those under discussion, and it is very likely that once bottle feeding expressed milk
regularly, it is but a small step to stopping pumping - a time and energy consuming activity -
and to give infant formula instead. We are not aware that Jackal NZ or its parent company
have any independent scientific studies (or that there have been any studies at all
undertaken independently by others) to corroborate their claim that the product 'helps your
baby breastfeed for longer'. 'Satisfied users' do not constitute scientific evidence. The NZ
Ministry of Health (Breastfeeding: A Guide to Action 2002) describes NZ as having a 'bottle
feeding culture'. "This is when bottle feeding is seen as the norm'. Consider: do you
associates bottles and teats with breast milk or with infant formula?

We also respectfully ask the Board to consider these arguments with regard to the principle
that any bottle feeding (whether of expressed breast milk or of infant formula) is not as SAFE
as breastfeeding. As soon as any alternative feeding utensils are introduced, even with clean
water and sterilisation techniques, the risk of infection to the baby increases.

Summary

Breastfeeding Advisory Services hopes that the ASA Appeal Board, upon rehearing this
complaint, will uphold the previous decision and order that the advertisement be withdrawn
from all future use.”
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Deliberation

The Appeal Board perused all relevant correspondence and Decisions concerning this
matter. It noted the essence of the complaints revolved around the product claim in the
advertisement which said: “Helping your baby to breastfeed for longer”.

The Appeal Board reiterated the stance held by the Complaints and Appeal Boards, that
should a claim in an advertisement be challenged the onus fell with the Advertiser to
provide satisfactory evidence of sufficient rigour, preferably results from independently
conducted research, in substantiation of that claim.

It noted that the application for appeal had been accepted under Rule 6. Appeal

           (a) (ii) There is new evidence of sufficient substance to affect the ruling.

Turning to the Advertising Codes nominated by the Complaints Board, the Chairperson
confirmed the ruling of the Complaints Board where it said:

“The Chairman ruled that the Code for Comparative Advertising, did not apply, as the
advertisement did not identify a competing product or service of a commercial nature, and
accordingly it was not a comparative advertisement for the purposes of the Code.”

Accordingly, the relevant provision in the Advertising Codes was the Code of Ethics, Basic
Principle 4 and Rule 2.

The Appeal Board noted the requirement stated in Basic Principle 4 that “All advertisements
should be prepared with a due sense of social responsibility to consumers and to society.”

As a preliminary matter the Appeal Board confirmed that it was legitimate to market bottles
and teats in the New Zealand market, and its role was to determine whether such
advertising met the requirements of the Advertising Codes.

Turning to the advertisement in its entirety, and noting that it promoted “an entire breast
feeding support system” which included a “unique new teat”, the Appeal Board was of the
view that the Advertiser had in fact observed a due sense of social responsibility in the
preparation of the advertisement, particularly when taking into consideration the target
audience, for whom the product was of relevance. The Appeal Board said it was evident
that Jackel NZ supported the position advocated in New Zealand by the Ministry of Health
and was committed to promoting breastfeeding as the normal method of feeding infants. As
such the Appeal Board ruled that the Complaints Board appeared in its deliberation to have
applied the standard of “a high sense of social responsibility” where it was not applicable.
Accordingly, the Appeal Board ruled that the advertisement observed the required due
sense of social responsibility and was not in breach of Basic Principle 4 of the Code of
Ethics. Accordingly, the Appeal Board ruled that the appeal be allowed in relation to this
issue.

Rule 2 of the Code of Ethics, required the Complaints Board to determine whether the
advertisement contained any statement or visual presentation or created an overall
impression which directly or by implication, omission, ambiguity or exaggerated claim was
misleading or deceptive, or likely to deceive or mislead the consumer.
                                              22
                                                                                       06/470

Addressing, this matter the Appeal Board turned to the “new evidence” provided in support
of the claim by the Advertiser. It noted that this consisted of a reference to Decision of the
UK Advertising Standards Authority (22 June 2005) and that the advertisement under
consideration in that matter differed from the one before it and in particular did not include
the claim: “Helping your baby breast feed for longer”.

It then took into account the material provided in support of the claim by A. Brown, who was
“the Health Professional Liaison Manager for Jackel International Ltd”, and also a practicing
Midwife for 13 years. To its mind this constituted an expression of opinion based on the
experience of an employee of the Advertiser, and it did not meet the required level of
substantiation for the claim “Helping your baby breast feed for longer”.

Similarly, the Appeal Board said the “Unsolicited Testimonials From Satisfied Users” did not
provide sufficient substantiation of the claim, that use of the product enabled babies to be
breast fed for “longer”.

Having taken the new evidence into consideration, the Appeal Board reiterated the ruling of
the Complaints Board where it said:

“In its view, a reasonable interpretation of the advertisement was that bottle feeding and
breast feeding were interchangeable and complimentary methods by which to deliver breast
milk to a baby. As such, there was a degree of ambiguity in the advertisement which was
likely to mislead. As there was no support material provided in substantiation of the claim in
question, the Complaints Board had no option but to rule that the advertisement contained a
misleading claim which was in breach of Rule 2 of the Code of Ethics.”

Having, found that the advertisement was in breach of Rule 2, that is that it was misleading
through ambiguity, the Appeal Board ruled in support of the Complaints Board decision
where it upheld the complaint in relation to Rule 2 of the Code of Ethics.

The Appeal Board ruled the appeal be dismissed in relation to Rule 2 of the Code of Ethics.


Decision: Appeal Dismissed (in part) Allowed (in part)

								
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