On 11 September 2013 the ASA ruled against the claims being made for this product. On 8 November 2013, the ASA ruled in favour of a breach complaint which pointed out that the same claims were still being made, and that sanctions were suggested. In this ruling, the ASA considered what sanctions were applicable.
BIOGEN TRIBULUS / H A STEINMAN / 20408
Ruling of the: ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd Respondent
31 January 2014
In Biogen Tribulus / H A Steinman / 20408 (8 November 2013) the respondent was found in breach of the previous Directorate ruling due to the continued use of the claims “Increases energy and stamina” and “Libido Enhancer” and “Potent sage testosterone precursor”.
The parties were afforded ten working days each to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant recommended that all forms of media (print, television, etc.) where advertising for USN products appeared over the preceding two months, should run corrective adverts at USN’s expense. In addition, he argued that all media should be requested to NOT accept any form of advertising from USN for a period of 12 months.
When motivating this request, he explained that USN was a serial offender, and listed several previous rulings both against USN and its Biogen brand.
The complainant added that despite undertaking to withdraw its Phedra-Cut Hardcore products (see USN Phedra-Cut Hardcore / HA Steinman / 20411 (5 June 2013) ruling of the Advertising Standards Committee for context), USN continues making essentially the same claims as before when promoting its products. A similar argument was made in relation to rulings issued under the reference USN Creatine X4 / D Stein / 2962. This persistent use of claims ruled against amounts to profiteering from the flagrant abuse of consumers, society, and bringing into disrepute, the ASA, advertising and marketing.
The ASA have no remaining options but to take the harshest actions against this company, incorporating both USN and Biogen brands.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
The respondent submitted that the Biogen brand has been handled with care to ensure compliance and any necessary action was taken when required. There have been only two prior incidents concerning its Testoforte & Adrenal Boost products, and in both cases it complied with rulings, removed products from its website, and/or amended labels.
The current breach was handled in the same manner, and the only concern relates to a website write-up where it had already admitted to an honest oversight, with no malicious or defiant intentions. The label was amended when requested, and a newer pack shot replaced the previous one to ensure even the possible visibility of the older label/ or claims would be avoided.
In addition to this, it has specifically hired a consultant to assist with guidance on label claims and it is updating labels proactively. It feels this alone can attest to the ethics and practice of the Biogen team and brand. It cannot be expected to comment on any USN product related cases, as it had no responsibility nor jurisdiction to do so.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At the outset, the Directorate does not agree with the complainant’s approach of lumping USN and Biogen rulings together for the sake of sanctions. While Biogen is a product / brand of USN, it appears to be separately managed, and at all instances, the ASA has dealt with Biogen staff, and not USN. In addition, the circumstances do not suggest that USN is advertising various products (including Biogen) in its advertising. The disputes brought before the ASA on Biogen products have always related to ads for and by Biogen only. It would therefore be unreasonable, based on the information at hand, to hold Biogen accountable for the USN indiscretions referred to by the complainant. The Directorate will therefore only consider this matter in relation to previous Biogen rulings.
In considering sanctions, the Directorate takes into account several factors; most notably the nature of the contravention, any history the respondent has with the ASA, as well as possible harm done to consumers or competitors as a result of non-compliance.
A preliminary search on the ASA’s electronic archives shows that in the past 12 months there has been only one ruling against the respondent, being the original ruling in this matter. Since then, the respondent has been found in breach on one occasion.
Objectively speaking, this does not appear to warrant severe sanctions, and does not suggest a deliberate intent to circumvent the ASA rulings or contravene the Code.
Having said this, the Directorate is reluctant to merely excuse the non-compliance, especially as the breach ruling pointed out that “The advertisement originally ruled against, and the one currently complained of are virtually identical”. The Code places the onus of compliance squarely at the door of the respondent. Any sanction imposed, would ideally serve as educational, rather than punitive at this time.
Weighing up the issues and relevant factors, the Directorate is of the view that a sanction in terms of Clause 14.2 of the Procedural Guide is warranted at this time.
In terms of this sanction, the respondent is ordered to submit the proposed amendment, original advertisement and the relevant ASA rulings to the ACA Advisory Service for pre-publication advice before making efficacy claims for its Biogen product. This is a once-off sanction, and the respondent should retain proof of its approval from the ACA Advisory Services, in the event of further disputes being lodged with the ASA.