Rightly or wrongly, complaint resolution mechanisms in self-regulated industries have – from time to time – been unfavourably compared to judicial systems. The theory is that a self-regulated process is more likely to be ‘captured’ by industry participants, and not lead to decisions made without fear or favour. So, it is interesting to see the Advertising Standards Board (ASB) adopting techniques at the forefront of judicial practice.
In a recent decision concerning Red Bull, the ASB openly acknowledged that the complaint raised technical issues outside the expertise of the Board. Accordingly, it obtained independent advice. This led to a report from Dr C K Roberts PhD relied on by the Board. Dr Roberts commented on some of the website claims made by Red Bull about its product. It is unfortunate that the ASB decision did not explain Dr Roberts’ qualifications, or the parameters of the request for assistance. However, from the excerpts of the report extracted in the decision, it is plain Dr Roberts was asked to consider the scientific basis underlying constituent elements of the Red Bull product.
The relevant website espoused the effects of Red Bull, referred to supporting scientific studies and concluded: “To best feel its effects, you should drink it at times of increased mental and physical strain, for example, on long sleep inducing motorways, during intensive working days …” The Board was asked to consider concerns that these were unsubstantiated claims for health and well being benefits.
Dr Roberts considered there was strong evidence for the claimed health benefit of caffeine, but that the statement “Taurine acts as an antioxidant” was not supported by recent scientific evaluations. Red Bull responded that it would remove the taurine claim.
Courts can call on independent expert assistance, but it doesn’t happen very often. It’s hard to understand why this lack of enthusiasm exists. Many patent cases (for example) concern technology well outside a judge’s knowledge or experience. Practitioners might frequently debate the pros and cons of a judge receiving independent help – the adversarial nature of the Australian system does not naturally lend itself to this approach – but everyone would accept that a judge should feel confident of technical factual issues. One issue is how best to adduce such evidence efficiently, and in a way which enables all parties to test its merits appropriately.