CAL-C-VITA held to be misleading

South Africa
In Woodin v Bayer (Pty) Ltd (September 11 2008), the Directorate of the South African Advertising Standards Authority (ASA) has held that Bayer (Pty) Ltd had breached the ASA Code of Advertising Practice
Angela Woodin filed a consumer complaint relating to the packaging of Bayer’s popular Cal-C-Vita Immune Protector product, on which the trademark CAL-C-VITA appears prominently. The words "essential vitamins and minerals designed to strengthen your immune system" appear in smaller font below the mark, with the words "immune protector" appearing in close proximity on the packaging.
Woodin alleged that the packaging of the product (in particular, the use of the name Cal-C-Vita) was misleading, as the product does not contain calcium. According to Woodin, this was in contrast to Bayer’s previous Cal-C-Vita product, which did contain calcium, as implied by the product’s name. In reply, Bayer argued that:
  • CAL-C-VITA is a registered trademark; and
  • the Immune Protector product represented an extension of the Cal-C-Vita product line. 
Bayer further submitted that:
  • consumers were unlikely to be misled by the packaging of the product, as the periodic name for calcium is 'Ca' (and not 'Cal'); and
  • as the product contains cholecalciferol (vitamin D3), the reference to Cal-C-Vita was accurate, and not misleading.
The directorate considered the complaint against the relevant clause of the code, which states as follows:
"Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer."
In light of this, the issue before the directorate was whether the hypothetical reasonable person would be likely to be misled by the packaging of the Cal-C-Vita Immune Protector product. Although it accepted Bayer's submissions that the product was an extension of the Cal-C-Vita product line and that 'Cal' is not the periodic name for calcium, the directorate found that it was obliged to consider extraneous circumstances in the market (eg, the packaging of previous products within the Cal-C-Vita brand and the packaging of similar calcium supplements).
In this regard, the directorate noted that Bayer’s original Cal-C-Vita product contained calcium and was intended to be used as a calcium supplement. The directorate pointed out that other calcium supplements on the market were sold under brand names incorporating the word 'Cal' (eg, CalMax, Caltrate Plus and Calmag C), presumably to indicate the presence of calcium in the product. This was confirmed by the fact that all the products incorporating the word 'Cal' which the directorate encountered in its investigations actually contained calcium. On this basis, the directorate found that it appeared to be industry practice to include the word 'Cal' in products which contain calcium or are calcium supplements.
In light of the foregoing, the directorate concluded that the hypothetical reasonable person (who is aware of Bayer’s original Cal-C-Vita product and of other brands of calcium supplements) could reasonably expect the Cal-C-Vita Immune Protector product to contain calcium. The predominance of the trademark CAL-C-VITA on the product’s packaging enhanced the likelihood of consumers being misled. Moreover, the directorate was not convinced that the word 'Cal' on the packaging of the product would be recognized as a reference to cholecalciferol, particularly as:
  • cholecalciferol was not cited on the packaging; and
  • no evidence was placed before the directorate to demonstrate the use of the word 'Cal' in reference to this vitamin.
Accordingly, the directorate ruled that the current packaging of the product contravened the code and ordered Bayer to withdraw the packaging with immediate effect.
Lauren Frizelle, Spoor & Fisher, Pretoria

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