Posted 31 May 2018
In our post of 8th May 2018, Herbex Fat Burn for Men – paying for nothing, we pointed out that this product contains 3 ingredients. We measured the level of green tea constituents in a lab, and could work out that, as we stated:
In other words, Herbex Fat Burn claims that a mixture of about half a bag of green tea leaves, caffeine found in 7.5 mls of a cup of coffee, and Ginseng traditionally used to stimulate appetite, added to 1 litre of water to be drunk throughout the day, will result in weight loss.
In other words, this product is highly unlikely to have much more than a placebo effect.
A complaint was laid with the Advertising Standards Authority. Herbex refused to submit any evidence to contradict ours. Below is the ruling.
Herbex CC / Fat Burn For Men / Harris Steinman / 2018-7685F
In the matter between:
DR Harris Steinman Complainant(s)/Appellant(s)
HERBEX A DIVISION OF NEWGROUP (PTY) LTD Respondent
31 May 2018
Dr Steinman lodged a consumer complaint against Respondent’s television commercial TVC promoting Herbex Fat Burn for Men Products. The TVC has also been uploaded to YouTube: https://www.youtube.com/watch?v=TKv5hcQ0Lgw
The TVC is in animation and features a married couple in their home. The man is overweight, and is shown carrying a tin of paint and struggling to climb the ladder. He finally makes it to the roof and starts painting, when the roof collapses on account of his weight. The wife says “Boet, DIY doesn’t mean ‘destroy it yourself’. I told you to use Herbex.”
The TVC closes of with an image of the Herbex Fat Burn for Men Range of products together with the following wording, inter alia, “Herbex for Men. Start today!” A disclaimer at the bottom of the screen reads “to achieve and maintain your goal weight, you must adjust your lifestyle. A kilojoule controlled diet and healthy exercise programme are essential.”
The Complainant submitted that the inference from the TVC is that using Herbex Fat Burn for men range can result in weight-loss, which is misleading and unsubstantiated based on the following:
Herbex Fat Burn Concentrate for Men attributes its claims to three main ingredients: Guarana, Green tea leaves and Siberian ginseng.
Herbex has previously recognised the Natural Medicines Comprehensive Database as a credible source. This source states that Siberian ginseng is an appetite stimulant. It also states that there is “insufficient evidence to rate” green tea for weight loss, even at far greater levels that that used in the product.
The European Food Safety Authority has found that, even at greater doses than that use in Fat Burn, there is no causal relationship between these products and weight loss.
The product only appears to supply 7% of a bag of green tea diluted in a litre of water, at best.
Guarana seeds contain 3.6%-5.8% caffeine by weight, so for the average of that range (4.7%) then 1 gram (1000mg) of guarana seeds would contain on average 47 mg of caffeine. Therefore, Herbex’s claim that 50mg of guarana supplies 48.8 mg caffeine appears to be false.
Similar arguments apply to the other product in the advert, Booster Fat Burn Drops for Men, which contains the same ingredients, but in a differential dose.
Herbex Fat Burn Concentrate for Men essentially claims that diluting between 7-50% of a green tea bag and half a cup of coffee in 1 litre of water, to be drunk throughout the day, will result in weight-loss. Furthermore, Herbex claims that this is possible with the inclusion of Siberian Ginseng, an ingredient which is traditionally claimed to be an appetite stimulant. There is no objective evidence to support these claims.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was considered relevant.
Despite all reasonable efforts to elicit a response from the advertiser, no response was received. The Directorate therefore had no alternative but to rule on the matter based on the information provided by the Complainant.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties. In the absence of a response from the advertiser, the ASA has no alternative but to rule based on the information submitted by the complainant.
The Respondent has previously raised that it is not a member of the ASA, nor does it agree to submit to the jurisdiction of the ASA.
In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16)  ZASCA 132 the Supreme Court of Appeal found, inter alia, that:
1.1 the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;
1.2 the ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.
The ASA will therefore proceed to consider this matter for the guidance of its members.
It is an established principle that advertising should be considered from the viewpoint of the hypothetical reasonable viewer or listener. When the woman in the TVC tells her husband that “I told you to use Hebex” together with the on-screen claims “South Africa No.1 slimming brand” and the image of Herbex Fat burn for Men Products, it communicates that using Herbex will result or aid in weight loss. The hypothetical reasonable person would understand that using the product will result in weight loss over and above that of simply following a diet and exercising.
It is an established principle of the ASA that a complainant cannot simply embark on a fishing trip when alleging that claims in advertising are unsubstantiated. The Complainant must make out a prima facie case for why they hold the belief that the claims are not true. The argument submitted by the Complainant in this matter ios compelling and meets the requirements of a prima facie case.
In Herbex / Fat Attack Testimonial / Dr Harris Steinman / 2018 – 7273F (29 March 2018), it was held, inter alia, “The Respondent chose not to respond to the merits as it is not member of the ASA and does not submit to its jurisdiction. Based on the above, the Directorate is presented with Complainant’s submissions on merits with no submission from the Respondent refuting Complainant’s averments. The Directorate is therefore left with no choice but to find that the efficacy claims in the commercial are unsubstantiated as required by the Code. The commercial is therefore in contravention of the provisions of Clause 10 of Section of the Code.”
Similarly in this case, the Respondent chose not to respond to the merits of the complaint. The Directorate is presented with Complainant’s submissions on the merits with no submission from the Respondent refuting Complainant’s averments. The Directorate is therefore left with no choice but to find that the efficacy claims in the commercial are misleading.
The commercial is therefore in contravention of Clause 4.2.1 of Section II of the Code.
Members of the ASA are instructed not to accept advertising for Herbex Fat Burn Concentrate for Men that contain weight loss claims.
The complaint is upheld.