In a previous ruling of 11 September 2013, the ASA accepted Biogen/USN’s voluntary undertaking to amend its packaging in a manner that would address the specific concerns raised. The complainant specifically objected to the following claims: • “Testosterone Booster” • “Increases Energy & Stamina” • “Libido Enhancer”.
On 28 October 2013, a complainant lodged a breach complaint against the Biogen’s website advertisement which continued to make the same claims. The complainant further argued that, as Biogen is a product of USN and Dis-Chem, both having had previous rulings against their claims, and considering that sanctions have previously been recommended against USN, this is a flagrant breach by a serial offender. Sanctions should be issued against both companies.
BIOGEN TRIBULUS / HA STEINMAN / 20408
Ruling of the: ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd t/a Biogen Respondent
08 November 2013
In Biogen Tribulus / H A Steinman / 20408 (11 September 2013) the Directorate accepted the respondent’s voluntary undertaking to amend its packaging in a manner that would address the specific concerns raised. The complainant specifically objected to the following claims: • “Testosterone Booster”. • “Increases Energy & Stamina”. • “Libido Enhancer”. The Directorate accepted that the amended claim “MAY HELP WITH ENERGY AND STAMINA” was sufficiently different to “Increases Energy & Stamina”, to render this a new claim. At the time, the respondent also undertook to remove the claim “Libido Enhancer” and “Testosterone Booster” entirely.
SUBSEQUENT TO THE RULING
On 28 October 2013, the complainant lodged a breach complaint against the respondent’s website advertisement for Biogen Tribulus. The advertisement appeared on http://www.biogen.co.za/products/tribulus-max. The complainant argued that the product makes the same claims ruled against, namely “Increases energy and stamina” and “Libido Enhancer”. He added that the claim “Potent sage testosterone precursor” is effectively the same as “Testosterone Booster”. The complainant further argued that, as Biogen is a product of USN and Dis-Chem, both having had previous rulings against their claims, and considering that sanctions have previously been recommended against USN, this is a flagrant breach by a serial offender. Sanctions should be issued against both companies.
RELEVANT CLAUSE 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 has instructed its website company to remove the page with immediate effect. It was an honest oversight and by no means intentional. It submitted that it had already updated the packaging.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties. At the outset, the Directorate notes that the “respondent” cited in this matter is “Ultimate Sports Nutrition (Pty) Ltd t/a Biogen”. The Directorate has dealt with the respondent on more than one occasion dating back as far as 2010. It has always identified the respondent as “Ultimate Sports Nutrition (Pty) Ltd”. Neither the respondent nor the complainant has objected to this, and there is currently nothing before the Directorate to show that Dis-Chem should be joined as a party. While the Directorate is aware that this product is retailed through Dis-Chem, this alone does not mean that Dis-Chem meets the definition of “advertiser” as outlined in Clause 4.7 of Section I of the Code. This ruling will therefore only be directed at the respondent as identified at the top of this ruling. Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. The advertisement originally ruled again, and the one currently complained of are virtually identical. The respondent has not disputed this, and submitted that it has instructed its website company to remove the webpage with immediate effect. It explains the breach as an “honest oversight”. While the respondent has now taken steps to remove the offending advertisement, this action is belated, and does not negate the fact that a breach has occurred.
GIVEN THE ABOVE, THE DIRECTORATE IS SATISFIED THAT THE RESPONDENT’S CURRENT ADVERTISEMENT THAT GAVE RISE TO THIS PARTICULAR DISPUTE WAS IN BREACH OF THE ORIGINAL RULING AND THEREFORE IN BREACH OF CLAUSE 15 OF THE PROCEDURAL GUIDE.
While the complainant has argued for sanctions, the Directorate has not yet afforded parties proper opportunity to address it on this issue. Now that the breach allegation has been dealt with, the complainant is afforded ten working days from the date of this ruling to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide should be imposed, and if so, which sanctions. After this, the respondent will be afforded an equal opportunity after which the Directorate will consider the issue of sanctions in accordance with the provisions of the Code.
THE BREACH ALLEGATION IS UPHELD, AND THE ISSUE OF SANCTIONS WILL BE FINALISED ONCE THE DEADLINES FOR SUBMITTING COMMENTS ON THIS ISSUE HAVE PASSED.