A consumer complaint was laid with the ASA against Biogen’s (a USN/Dis-Chem product) packaging of its “Tribulus Max” Testosterone Booster product. The complainant specifically objected to the following claims:
- “Testosterone Booster”.
- “Increases Energy & Stamina”.
- “Libido Enhancer”
Biogen submitted a copy of an amended label for its product. The amended label does not feature the claims “Testosterone Booster” or “Libido Enhancer” as disputed by the complainant. It also now stated “may help with energy and stamina”.
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
11 September 2013
Dr Steinman lodged a consumer complaint against Biogen South Africa’s packaging of its “Tribulus Max” Testosterone Booster product. The complainant specifically objected to the following claims: • “Testosterone Booster”. • “Increases Energy & Stamina”. • “Libido Enhancer”.
The complainant referred to the claims listed above, stating that the product’s name and the claims are misleading to consumers and require substantiation in terms of the Code. He added that the Natural Medicines Comprehensive Database has studies relating to most of the ingredients contained in this product, and these suggest that there is no evidence of any efficacy as claimed.
RELEVANT CLAUSES 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 4.2.1 (Misleading claims)
The respondent addressed the merits of the matter but subsequently submitted a copy of an amended label for its product. The amended label does not feature the claims “Testosterone Booster” or “Libido Enhancer” as disputed by the complainant. It also now states “MAY HELP WITH ENERGY AND STAMINA”.
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 complainant has not explained on what basis the name “Tribulus Max” was unsubstantiated or misleading. As such, the Directorate did not consider this aspect of the complaint, and confined its consideration to the three claims listed above, as these were specifically highlighted as problematic by the complainant.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking can be, at the Directorate’s discretion, accepted without considering the merits of the matter.
The respondent’s new labelling does not appear to reflect the claims that the complainant was disputing. While reference is still made to “… energy and stamina”, this is now done in the context of “May Help With Energy And Stamina” as opposed to “Increases Energy & Stamina” as a matter of fact. This potential assistance is communicated differently to the original claim to the extent that it has become a new claim.
While still subject to the provisions of, inter alia, Clause 4.1 of Section II (Substantiation), the Directorate is satisfied that there is no current dispute against the new claim. As such, the amendments appear to address the complainants’ concerns and there is therefore no need for the Directorate to consider the merits of the matter at this time. The amendments are therefore accepted on condition that the claims “Testosterone Booster”, “Increases Energy & Stamina”, and “Libido Enhancer” are not used again in future in their current format.