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Biogen Testoforte: ASA ruling – print advert

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[note note_color=”#fcfcc0″]Biogen “Testoforte” / K Charleston / 19706
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


Mr Charleston lodged a consumer complaint against a print advertisement promoting the respondent’s “Testoforte” product. The advertisement appeared in the Sunday Times during February 2012.

The advertisement is headed “WHY TESTOSTERONE IS THE MALE DRIVER” and contains, inter alia, an image of the product packaging. The following claims are visible on the packaging:

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

Below this, a rudimentary bar-chart appears along with the words “Scientifically formulated”.

In addition, the body copy contains a graph depicting “TESTOSTERONE” and “BIOAVAILABLE TESTOSTERONE”levels at ages 50 and up, and an entire section containing the “References” relied on.

The complainant referred to studies 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”.

In addition, he alleged that the graph and references have no relevance to the efficacy claims, and that the references are “virtually unreadable on the print advert without magnification”. The complainant suggests that the only use for the graph and the references would be to “dupe” the public into believing the statement “Scientifically formulated” in contravention of the provisions of Clause 4.2.1 of Section II of the Code.

The complainant identified the following provisions of the Code as relevant:

Clause 4.1 of Section II (Substantiation) – reference was also made to Clause 4.25 of Section I (Definitions – Scientific substantiation)

Clause 4.2.1 of Section II (Misleading claims)

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.

With regards to the graph and its associated references, it submitted that this has nothing to do with the “Scientifically formulated” claim visible on the packaging. It highlights declining testosterone levels at certain ages, and was meant to relate to the claim “Testosterone levels decrease with age”, which is the primary claim of the advertisement. This graph was obtained from the American Journal of Epidemiology, 1998, Vol 147, as issued by the Johns Hopkins University of Hygiene and Public Health. A copy of the actual article, titled “Sex Hormones and Age: A Cross-sectional Study of Testosterone and Estradiol and their Bioavailable Fractions in Community-dwelling Men” was attached.

Insofar as the “Scientifically formulated” claim is concerned, it explained that this is a justifiable claim, as its team responsible for developing this product include a Dietician with a masters degree, a Scientist with a National Diploma Medical Technology (specialised in microbiology), two R&D Chemists and formulators, and Dr Mark Tallon (PhD CSci RNutri FIFST FSB) who consults in relation to ingredient profiles on the products.

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 Directorate also agrees with the respondent that the graph and references appear to be significantly removed from the image of the packaging, and a hypothetical reasonable person would not interpret the graph or its references to relate to the efficacy claims or the “Scientifically formulated” claim. In fact, looking at the advertisement objectively, it is patently clear that this graph is associated with the 10 “Reasons why you simply cannot afford any less …” testosterone. The copy lists 10 consequences of lowered testosterone, presents the graph to illustrate how testosterone levels drop over time, and then provides a list of references (in a font not much smaller than the overall body copy).

Given this, the Directorate rejects the complainant insofar as the claim “Scientifically formulated” and the graph and references are concerned. The Directorate does not regard the claim, graph, or references as misleading or in contravention of Clause 4.2.1 of Section II of the Code for the reasons advanced by the complainant.

The only remaining issue is that of general efficacy, and the Directorate’s scope is accordingly limited whether the claims concerning efficacy can be substantiated.

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 production within natural ranges”;
• “Maintains lean muscle mass”;
• “Heightens energy levels, sex drive and physical performance”.

Given the Code’s requirement for substantiation, 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 efficacy 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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