Posted 12 April 2016
A consumer lodged a complaint against Chrome Shop’s advertising on www.chromeshop.co.za as well as the actual product packaging. The advertising and packaging promotes a product range called “Pharmafreak ” and more particularly, a product called “Anabolic Freak”. It contains, inter alia, claims that the product can boost testosterone levels (not unlike USN’s unsubstantiated claims for similar products). The complainant explained that the studies relied on (with the exception of one) were not done on humans, and can therefore not be used as proof that the product would deliver the same results in humans.
The ASA evaluated the evidence supplied by the advertiser and “the respondent has not submitted any arguments to negate the complaint, and has not provided any alternative interpretation for its claims”.
CHROME SHOP / PHARMAFREAK / R DE LANGE / 2015-2177F
Ruling of the: ASA Directorate
In the matter between:
DR RUDI DE LANGE Complainant(s)/Appellant(s) CHROME SUPPLEMENTS AND ACCESSORIES CC Respondent
05 April 2016
Dr de Lange lodged a consumer complaint against the respondent’s advertising on www.chromeshop.co.za as well as the actual product packaging. The advertising and packaging promotes a product range called “PHARMAFREAK” and more particularly, a product called “Anabolic Freak”. It contains, inter alia, the following claims:
“Both ANABOLIC FREAK and TEST FREAK are testosterone boosters, however, each product has a completely different formula and works to increase testosterone in two different ways”, “ANABOLIC FREAK supplies your body with a clinically-researched dose of D-Aspartic Acid (DAA) to support luteinizing hormone (LH) and natural testosterone production”, “Help increase testosterone that supports muscle health”
“… to support healthy testosterone levels in humans”, “… has testosterone boosting effects”, “… Testosterone amplifying agents”, “Increases Testosterone”, “Testosterone Booster”, “Testosterone Stimulator”.
The complainant added that the following claims were apparently added to the product packaging by the respondent:
“100% Clinically-Validated Dosages”
The complainant explained that he enquired about the product in-store, and eventually received certain documentation from the manager. However, after considering this documentation, he has come to the conclusion that the evidence relied on is insufficient, and that the respondent is misusing scientific terms to mislead consumers about the product’s efficacy.
He explained that the studies relied on (with the exception of one) were not done on humans, and can therefore not be used as proof that the product would deliver the same results in humans. The one study that was done in humans only tested one ingredient, which is inadequate to prove of efficacy for the product as a whole.
In addition, he pointed out various reasons why the seemingly statistically significant results achieved would not actually deliver a tangible benefit to the customer. These include apparent flaws in the study design, the duration of the study versus the dosage instructions, inconsistencies between the ingredients tested and those used in the product and limitations to how testosterone binds to proteins as opposed to building muscle. Finally, he made the point that one study done on typical users of this product actually found no increase in testosterone levels.
Insofar as the claims of “100% Clinically-Validated dosages, Clinically – Validated and Clinically–researched ingredients”, the complainant argued that the average consumer would interpret such claims to mean that the product was subjected to a clinical study (or studies) and found to have proven efficacy. The evidence relied on, however, disprove such a notion given that the product itself was never tested; that the dosages were not determined through any clinical trials; and that the results do not support the claims.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE The complainant identified the following clauses of the Code as relevant:
Section II, Clause 4.1 – Substantiation
Section II, Clause 4.2.5 – Statistics and scientific information
The respondent advised that the claims are based on research and information kept by its suppliers, DS International Chrome, who imports this product. It provided contact details for a Mr Damon Santillan.
When the Directorate addressed correspondence to Mr Santillan, it received a request for an extension, penned by Mr Todd Harrison, “Counsel to PharmaFreak Sciences”. This extension was granted, but no response was received. The Directorate therefore had no alternative but to rule despite the absence of a formal response.
ASA DIRECTORATE RULING
The ASA Directorate has considered all the relevant documentation submitted by the respective parties.
It should firstly be noted that the Code defines an “Advertiser” as “… the entity, commercial or otherwise, at whose instance the advertising appears”. The advertising at issue appears on the respondent’s website, and on packaging sold at its stores. While the ASA accepts that the respondent does not necessarily craft the actual packaging, it is assumed that proceeds from the sale of these products are for the respondent’s benefit.
As such, the Directorate regards the “Advertiser” in this instance to be the respondent as identified at the top of this ruling.
Clause 4.1 of Section II of the Code provides, inter alia, “Before advertising is published, advertisers shall hold in their possession documentary evidence to support all claims, whether direct or implied, that are capable of objective substantiation. Documentary evidence, whether in the form of survey data or any other documentation, shall be up to date and current, and shall have market relevance. Documentary evidence, other than survey data, shall emanate from or be evaluated by a person/entity, which is independent, credible, and an expert in the field to which the claims relate and be acceptable to the ASA.”
Clause 4.2.5 of Section II of the Code stipulates, inter alia, that “Advertisements should not misuse research results or quotations from technical and scientific literature. Statistics should not be so presented as to imply that they have a greater validity than is the case. Scientific terms should not be misused, and scientific jargon and irrelevancies should not be used to make claims appear to have a scientific basis they do not possess.”
The complaint is twofold: firstly, it was alleged that the relevant claims are misleading to consumers because the respondent does not hold adequate, product-specific evidence for the claims; and secondly, that the advertisement was misleading as it suggested that the product was backed by clinical trials or clinical research, which is not the case.
The respondent has not submitted any arguments to negate the complaint, and has not provided any alternative interpretation for its claims. In fact, the respondent has placed nothing before the Directorate that could constitute independent verification from an expert, confirming that the benefits claimed in the packaging and website apply to the respondent’s product as available on the market.
Accordingly, the Directorate finds that the claims on the packaging and internet are unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
In light of the adverse ruling made above, the respondent is instructed to:
Withdraw the claims at issue;
Ensure that the process of withdrawing the claims is actioned with immediate effect on receipt of this ruling; Ensure that the process of withdrawing the claims is completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and Ensure that the claims are not be relied on again in their current format until such time as adequate substantiation has been submitted, evaluated and accepted by means of a new Directorate ruling. The respondent’s attention is drawn to Clause 4.1 of Section II in this regard.
The complaint is upheld on Clause 4.1 of Section II, meaning that there is no need presently to consider Clause 4.2.5 of Section II.
In view of the fact that the respondent has failed to comment on the matter and an adverse ruling has been made, the Directorate will issue an Ad Alert to its members requesting them not to accept the packaging at issue.