Biogen Testoforte: ASA ruling – website advert

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[note note_color=”#fcfcd4″]Biogen “Testoforte” / K Charelston / 19705
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd Respondent [/note]

16 Aug 2012
http://www.asasa.org.za/ResultDetail.aspx?Ruling=6210
Mr Charleston lodged a consumer complaint against website advertising on the URL www.biogen.co.za/products/testoforte.asp. The advertising promotes the respondent’s product using, inter alia, the following claims:

• “Increases testosterone within natural ranges”;
• “Maintains lean muscle”;
• “Heightens energy levels, sex drive and physical performance”;

It further states that “Biogen Testoforte is a proprietary blend of unique ingredients, developed to increase stamina, performance and desire naturally” and that “TestoForte Ingredients have been used successfully by Chinese Physicians for up to 2000 years as a sexual enhancer. Male libido enhancement can be achieved by increasing testosterone levels to optimal, natural levels, which is the main mechanism of action for Testoforte”.

COMPLAINT
The complainant referred to studies allegedly referenced in the advertisement, explaining why they are irrelevant or contradict the impression that the product would deliver on the claimed benefits. He argued that the “claim that the product is effective has no scientific basis and requires substantiation”.

It should be noted that the complainant also lodged a complaint against the respondent’s print advertisement appearing in the Sunday Times around the same time. This complaint has been allocated a different case number (19706), and is being considered separately as it relates to a different advertisement containing somewhat different claims or graphs.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the provisions of Clause 4.1 of Section II (Substantiation) as relevant. Reference was also made to the definition of “Scientific substantiation” as contained in Clause 4.25 of Section I.

RESPONSE
The respondent only filed one response in relation to the 19706 matter (i.e. the Sunday Times advertisement), but confirmed that “… we can still use the same response for 17905 [sic] and 17906 [sic] …”

Its response deals with the fact that this product falls into the category of Complementary, Alternative and Traditional medicines (CAMs), and is therefore associated with a completely different paradigm to regular medicines. The knowledge and support for efficacy originated centuries (or in many instances millennia) ago, and is still accepted and subscribed to today, both in the countries of origin and the western world.

In terms of the South African Constitution, it has a right to encourage and promote products from a CAM paradigm alongside the allopathic, biomedical paradigm of ordinary medicines.

It also questioned whether or not “scientific substantiation” as called for by the complainant (with reference to Clause 4.25 of Section I) has relevance, given the nature of the product. It argued that the documentary evidence as called for in Clause 4.1 of Section II should have “market relevance” to CAMs, and attached documentary evidence (from a CAMs perspective) to support its claims.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

At the outset it should be noted that the Directorate is not tasked with determining whether or not a CAMs perspective or a “biomedical” perspective as the respondent termed it, is appropriate or should be disallowed. The ambit and role of the ASA is to ensure that advertising is self-regulated in the public interest and remains informative, factual, honest and decent in line with the provisions contained in the Code.

The scope of this ruling is limited to the subject matter of the complaint brought to the ASA, namely whether the claims concerning the efficacy of the respondent’s product can be substantiated. The ASA is not able or authorised to rule on the quality or safety of the product in question, and this ruling must be interpreted and applied accordingly.

It should also be noted that the Directorate was not able to locate any of the references allegedly seen in the online advertisement. It would appear that the complainant obtained these references from the print advertisement complained of and erroneously included them in the complaint relating to the website.

Clause 4.1 of Section II requires advertisers to hold in their possession (prior to publication) documentary evidence that supports any direct or implied claims. It further stipulates that such evidence should either emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate.

The complainant took issue with the efficacy claims made for this product. These are:

• “Increases testosterone within natural ranges”;

• “Maintains lean muscle”;

• “Heightens energy levels, sex drive and physical performance”;

• “… increase stamina, performance and desire naturally”.

Accordingly, the respondent would have to show that its product, as purchased by consumers, and when consumed at the recommended dose, would bring about the claimed effects. The substantiation relied on by the respondent falls short in this regard for the following reasons:

Firstly, the respondent has not submitted any unequivocal verification from an independent and credible expert that the results obtained or discussed in the relevant documents can be extrapolated and applied to its product.

Secondly, the respondent has not motivated why the sources relied on should be regarded as independent and credible expert sources.

Thirdly, some of the documents associate the ingredients with conditions that do not appear to be related to testosterone, energy levels, sex drive or performance, or stipulate that data is lacking for any indication and that more research is required before any conclusions can be drawn.

For all the above reasons, the Directorate is not currently satisfied that the efficacy claims made in the advertisement are adequately substantiated in terms of the requirements of Clause 4.1 of Section II of the Code.

In light of the above finding, the respondent is required to:

withdraw the claims complained of in their current format;

the process to withdraw the claims must be actioned with immediate effect on receipt of the ruling;

the withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and

the claims may not be used again in their current format in future unless new substantiation has been submitted and accepted by means of a new ruling.

The complaint is upheld.

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