Posted 01 April 2014
The claims for Aminoliq has previously been ruled against by the ASA for the company could not prove that the product could really do as claimed. Despite an assurance from the owner, Norman Fells, that he would no longer make the claims, the company has recently produced a number of variants and started making unsubstantiated claims again. Can one not trust Norman Fells? Worse, Norman is treasurer of the HPA (Health Products Association of South Africa). Oops!!
20 Mar 2014
In Aminoliq / H A Steinman / 16595 (24 February 2011) the Directorate accepted the respondent’s voluntary undertaking to withdraw or amend its advertising in a manner that would address the concerns raised by the complainant. The advertising at the time stated, inter alia, the following:
“Aminoliq contains the specialised ingredients, Choline and Inositol. Together they are effective in metabolising fat. Inositol is also an active factor of the B-Complex vitamins. Amino acids are included in this formula to improve muscle definition, i.e. body shape.
Aminoliq promotes the utilization of fats & carbohydrates in the body. The net result is that excess fat is more readily burned resulting in a leaner & more defined body. Amino acids are utilised to rebuild muscle & body tissue.
Vitamin B complex aids in the digestive process.
Vitamin C aids in the formation of collagen and inter cellular material”.
The respondent’s attention was drawn to the provisions of Clause 15.5 of the Procedural Guide, which requires problematic advertising or claims to be removed from all media in which they appear, irrespective of whether or not the complainant took issue with such media.
On 21 October 2011 the respondent was again found in breach of the previous Directorate ruling in respect of website advertising. No sanctions were imposed.
SUBSEQUENT TO THIS RULING
On 24 February 2014, the complainant lodged a breach complaint against the respondent’s website advertising on www.prohealth.co.za. In essence, he submitted that this range of products continued to infer or make unsubstantiated claims, stating among other, “Assists in breaking down & cutting fat”, and “Provides energy from fat burning process”, etc.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted that it had removed the claims from its labels and it was done at considerable expense. It submitted that its wording on the website is specific, for example, “may assist in” or “These ingredients are thought to have” thermogenic, immune supporting, fat emulsifying / lipogenisis and energy giving properties. It does not believe that it’s advertising to be in any way misleading to the consumer.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
At the outset, it is noted that the original complaint as well as the previous breach ruling specifically related to the “Original, Butterscotch” variant. While the complainant has now referred to the entire range, the Directorate has not actually ruled on the entire range and all variants. It would therefore not be appropriate to consider the advertising for the entire range at this point.
The Directorate is therefore ONLY considering the advertising for the respondent’s “Original & Butterscotch” variants as promoted on its website. Any objections the complainant may have against the other variants will be subject to new complaints in accordance with the ASA procedures.
Getting to the merits of the breach allegation, the Directorate is conscious of the fact that it tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. To do so, two key questions need answering:
a) Did the respondent comply with the deadlines for withdrawal as articulated in Clause 15.3 of the Procedural Guide and/or the relevant ruling?
b) Are the claims at issue the same or substantially similar to those ruled against?
The original advertising listed the product’s ingredients and explained that the product is “… effective in metabolising fat …” that it “… promotes the utilization of fats & carbohydrates in the body …” and that this results in “… excess fat [being] more readily burned, resulting in a leaner & more defined body …”
At the time, the respondent conceded that “… Prof Andrew Bosch at UCT SSC … says that the references we forwarded to him … did not constitute adequate support for our claim …” In light of this, the respondent undertook to withdraw its advertising and “… make appropriate changes to our packaging and literature pertaining to all variants and flavours of Aminoliq …”
When the respondent was found in breach of the ruling (refer the Directorate’s ruling of 21 October 2011), it was because its website still contained claims that this “… dietary supplement, particularly suitable for slimmers or anyone wanting to cut excess fat and improve body shape … [was] … effective in metabolising fat … [and] … promotes the utilization of fats & carbohydrates … [resulting in] excess fat [being] more readily burned resulting in a leaner & more defined body …”
The respondent’s current website (see http://www.prohealth.co.za/index.php/product as well as http://www.prohealth.co.za/index.php/product/category/aminoliq) still promotes the Original & Butterscotch variant under the auspices that it “Assists in breaking down & cutting fat” and that it “Provides energy from the fat burning process”. This is effectively a shortened version of the same claims originally made. The product is also clearly labelled as a “Liquid Dietary Supplement”.
The Directorate accepts that the respondent’s product-specific page that appears when clicking on “Show Details” now appears to incorporate references to “may” assist (see http://www.prohealth.co.za/index.php/product/item/aminoliq?category_id=1). However, this page is not what was objected to by the complainant, and these changes are inconsequential when considering the advertising as a whole. The wording here is almost exactly the same as what was originally objected to, with the exception of the inclusion of the word “may”.
The respondent’s submissions suggest that even the mere possibility of being able to deliver on the efficacy claimed is still theory, rather than proven fact. Its response states, inter alia, as follows:
“I spoke yesterday with [Professor] Andrew Bosch who, although not having any recollection of the discussion, stated that he may have said that he was not aware of any scientific studies relating to the ingredients of Aminoliq as having fat burning properties.
However, when I described the mechanism of the product and the hypothesis of the mode of efficacy, he conceded that the theory may well be valid …” (Directorate’s underlining).
At best, this confirms that the respondent has not done any product-specific research and that there is nothing that conclusively proves that this product will (or even “may”) “Assist in breaking down & cutting fat”.
Given that the disputed claims on the respondent’s website still effectively communicate to the hypothetical reasonable person that this product “Assists in breaking down & cutting fat” and that it is a “Liquid Dietary Supplement”, the Directorate agrees that the advertising objected to by the complainant is in breach of the original ruling.
The respondent’s current advertising of its “Original & Butterscotch” variant is therefore in breach of the original ruling, and by virtue thereof in breach of the provisions of Clause 15 of the Procedural Guide.
Given that this is the second time that the respondent has been found to be in breach of the original ruling, the Directorate is affording the complainant ten working days from the date of this ruling to comment on whether or not sanctions are called for in terms of Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity, after which the Directorate will consider the issue of sanctions.
The breach allegation is upheld.