Posted 03 July 2013
Contrary to advertising, 100% whey powder does not build muscle, nor does one actually need so much extra protein for enough can be supplied by the diet. What if a company claims to contain less protein in the product than actually advertised? In our testing, we evaluated Evox and USN products and found both to be deficient. Below is the Evox ruling. The USN one is still pending.
|EVOX 100% Whey Protein / HA Steinman / 21654|
Ruling of the : ASA Directorate
In the matter between:
DR HARRIS A STEINMAN Complainant(s)/Appellant(s)
DEALCOR FORTY CC t/a EVOX Respondent
26 Jun 2013
Dr Steinman lodged a consumer complaint against the respondent’s advertising of its “100% Whey Protein” product appearing on http://www.evox.co.za/product-item.aspx?prid=39.
The advertising claims “Our 100% Whey adds grams of quality muscle with every scoop” and lists its protein levels (per 100g) as 72g.
The complainant argued three things:
The name of the product “100% WHEY PROTEIN” is misleading because it contains neither 100% protein nor 100% whey, but also contains, inter alia, artificial sweeteners.
The ingredient-listing for protein is misleading because the levels contained in the actual product are below those claimed. The complainant had two different products, bought at two different stores tested, and results show protein levels of approximately 18% lower than claimed.
The claim “Our 100% Whey adds grams of quality muscle with every scoop” cannot be substantiated because there is no scientific evidence that the respondent’s product will build quality muscle. The complainant added that the amount of protein in a normal diet already exceeds what is required in general. In addition, this product would not result in nearly the same quality muscle as one would obtain from dietary protein such as beef or chicken.
RELEVANT CLAUSESOF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section I (Substantiation) as relevant to this dispute.
The respondent initially requested an extension to reply, which the Directorate granted. However, when the Directorate again approached the relevant contact person (Mr Larry Krug) once the deadline had lapsed, he advised that was no longer employed by the respondent, and provided new contact details (for one Alan).
Despite sending correspondence to the supplied contact information, the Directorate received no reply. It was, however, able to confirm telephonically that the recipient of its emails was also the owner of the company.
Subsequently, the respondent submitted a lengthy answer to the complaint, arguing, inter alia, as follows:
In terms of the Foodstuffs, Cosmetics and Disinfectants Act, the complainant is lawfully prohibited from conducting such tests on the respondent’s product unless he is authorised by the Director General of Health. The complainant’s conduct amounts to a criminal offence which the respondent intends to refer to the South African Police Service.
The test relied on by the complainant are flawed in that the relevant controls were not put in place, no information is provided on how sampling was done or what methodologies were used to obtain the alleged results. There is also no proof that the product tested was actually that of the respondent.
Products of this nature are common in the market, and the complainant’s failure to join all other players in the industry is a malicious attempt at anti-competitive behaviour. Any attempt to rule against the respondent in this instance would effectively apply to the industry as a whole.
The claims and information stipulated on the labelling fall under the auspices of the Department of Health.
Products of this nature are predominantly manufactured by obtaining the raw ingredients from supplier (who carry the onus of providing quality ingredients along with certificates of analysis), and combining the ingredients in accordance with a pharmacist formula. Only certain products are thereafter tested and it is then verified that the product has met the labelling requirements. In terms of the Foodstuffs, Cosmetic and Disinfectant Act, a labelling variance is permitted. The essential question is therefore whether or not such labelling variance remains lawful within the labelling requirement defined in the Act. Comment was also made that the complainant is attempting to facilitate anti-competitive behaviour on the part of competitors.
While it is denying the allegation that the claim “…adds grams of quality muscle with every scoop” is incorrect, it will remove this claim with immediate effect.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the complainant.
At the outset, the respondent’s allegation that the complainant is attempting to facilitate anti-competitive behaviour was not supported by any information or supporting evidence. It cannot, therefore, be taken any further at this point. Similarly, the allegation that the complainant acted unlawfully in conducting unauthorised testing is not something that the ASA is able to determine or deal with, and does not fall under the auspices of the ASA Code. This issue is therefore not material for the purpose of this ruling.
100% Whey Protein
The packaging and website advertising consistently refer to the product as “100% WHEY PROTEIN”, which the complainant believes is misleading because the product neither contains 100% protein nor does it contain pure whey.
The Directorate, however, does not share the complainant’s interpretation of the meaning of the reference to “100%”. Considering the information contained on the advertising (which clearly indicates the presence of other ingredients than protein, the Directorate believes a hypothetical reasonable person would interpret the reference to 100% to mean that the protein used in the product is 100% Whey protein. Put differently, the claim communicates that the product contains no other protein than Whey protein.
This aspect of the complaint is therefore dismissed.
Similarly, the complainant took issue with the information contained in the ingredients listing in the “Nutritional Information” table on the packaging and website. In Colgate Optic White Toothpaste / Unilever / 21482 (15 March 2013), the Directorate had to consider whether or not information contained in the ingredients list of a product constituted “advertising”. It ruled, inter alia, as follows:
“Insofar as the outer carton packaging is concerned, the respondent correctly noted that not all content of packaging is automatically defined as ‘advertising’. The Code specifically explains that ‘promotional content’ of packaging would fall under the jurisdiction of the ASA.
There is nothing to suggest that the fluoride levels indicated on the respondent’s packaging is used as ‘promotional content’. There is no creative element present in its listing and nothing on the rest of the packaging draws attention to the fluoride levels in a manner that suggests that this is key feature and that consumers should buy this specific toothpaste because of its fluoride content. The Directorate agrees with the respondent that the ingredient list, in this specific context, is not intended to promote the sale or use of the product in a manner that would render it ‘advertising’.”
While the Directorate accepts that the information contained in the respondent’s “Nutritional Information” panel does not appear to match what the complainant’s laboratory analysis revealed, the Directorate is not convinced that this information amounts to “advertising” in terms of the Code. In keeping with the approach followed in the Colgate Optic White Toothpaste matter referred to above, there is nothing to suggest that the protein levels indicated on the respondent’s packaging is used as ‘promotional content’. There is no creative element present in its listing and nothing on the rest of the packaging draws attention to the potential buyer’s attention to the ingredient listing with an aim to use the ingredient listing table as an incentive to purchase.
While the complainant may or may not be correct in alleging that the claimed levels of protein are incorrect, this is not an advertising issue, but rather something that should be brought to the attention of the appropriate regulators, which in this instance appears to be the Department of Health.
In light of the above, the Directorate will not consider the information contained in the ingredients list for the purpose of this ruling.
“Our 100% Whey adds grams of quality muscle with every scoop”
The respondent submitted that it “… denies the claim that it in fact does not add grams of quality muscle …” but confirmed that it would “…remove the claim with immediate effect …”
The ASA has a long-standing principle in terms of which it may, at its discretion, accept an undertaking to amend or withdraw a specific piece of advertising (or a specific claim for that matter) as an adequate resolution, negating the need to consider the merits of the complaint. This is usually done in instances where the advertiser does not appear to be giving such an undertaking merely to avoid sanctions and where the undertaking appears to address the concerns raised.
By removing the claim “Our 100% Whey adds grams of quality muscle with every scoop” from its advertising, the respondent appears to address the complainant’s concern insofar as this claim goes.
The Directorate therefore, in terms of the discretion afforded to it in Clause 8.5 of the Procedural Guide, accept this undertaking as an adequate resolution, thus negating the need to consider the merits of this portion of the complaint at this time.
This undertaking is accepted on condition that the claim is removed with immediate effect, within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future. The respondent’s attention is also drawn to the provisions of Clause 15.5, which effectively require it to withdraw this claim from any and all media in which it may appear.