Posted 06 June 2012
A consumer laid a complaint against a product claiming that, among other, “Kwik-Up Pills one hour before action and get a bigger, harder, stronger erection – Fast” and “The chemist gave me Kwik-Up pills and now my erection is hard and strong and I can go all night. My wife will never leave me now.”
The ASA agreed that there is no stiff evidence to support these claims.
In fact, at the www.medehealth.co.za website, a many more scam products are advertised, including MEDeENLARGE, Male Organ Enlargement capsules, “a vitamin and herbal supplement that helps develop the male organ. It is a natural product with no known side effects”.
|Med-E-Health-Kwik-Up / K Charleston / 20055|
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
Med-E-Health cc Respondent
04 Jun 2012
Mr K Charleston lodged a consumer complaint against a Med-e-Health’s print advertisement promoting Kwik-Up male performance booster.
The advertisement contains photographs of two women and, inter alia, the wording:
E SEXUAL PERFORMANCE”
BIGGER, HARDER, STRONGER ERECTIONS!”
E KWIK-UP PILLS ONE HOUR BEFORE ACTION AND GET A BIGGER, HARDER, STRONGER ERECTION – FAST”
A testimonial by “Simon”, which reads “My wife always complained that I did not satisfy her because my erections were too weak and soft. I could not keep it up for long. The chemist gave me Kwik-Up pills and now my erection is hard and strong and I can go all night. My wife will never leave me now.”
In essence, the complainant submitted that the advertisement offers no evidence for the claims made for the product. The complainant argued that the claims have little scientific basis and require substantiation.
In addition to this, the complainant argued that the testimonial is not real and also makes unsupportable claims.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant submitted that the following clauses of the Code should be taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 10 – Testimonials
The respondent submitted, inter alia, that:
When the advertised product was launched it did a lot of sampling and research and has the results thereof. The research revolved around how it affected users’ erections; what was different; any side effects; how long it took to work; would they purchase the product; how long did it last.
It has feedback on file from eleven people who used the product and gave the respondent feedback of which many support the claims made.
The statements made in the advertisement do not claim a specific quantifiable amount, size or strength. Consumers’ take out from the advertisements is that the product will aid them in getting increased or better erections with the aid of the advertised product. It is a medical fact that improved blood flow to the penis results in stronger and harder erections. The ingredients in the product are recognised vasodilators, which deliver such increased blood flow.
The wording of the testimonial were changed slightly in the advertisement to make it more consumer friendly and the name of the writer of the testimonial was changed from Wessel to Simon as the respondent felt that an Afrikaans sounding name would not resonate well with its prime target audience.
The respondent also submitted the following documents:
A document titled “SUPPORTING DOCUMENTATION”, which contains extracts from information on “Cnidium”, “Horny Goat Weed”, “Cayenne Pepper”, “L-Arginine”, “Ginseng”, “Ginko Biloba” and some other ingredients.
Testimonials, in the form of a letter from Wessels Germishuizen and from Kayode Shoteyo of Judiths Paarl Pharmacy.
As an additional measure, the respondent offered to do a physical demonstration for the Directorate.
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 provided no reason as to why he appears to expect the advertiser to offer evidence for the claims in the actual advertisement. In addition, he offered very little in motivation as to WHY he believes the claims are unsubstantiated.
In any dispute the complainant has a duty of providing grounds for his objection, and cannot simply make an allegation based on nothing (refer Nature’s Choice Products / MacCain Foods / 16283 (12 November 2010) for clearer explanation). While the complainant did explain that the claims have “little scientific basis”, the complainant would do well to properly motivate his complaints and explain the basis of his allegations in future more comprehensively.
From the complaint it would appear that the complainant was unable to find more than “little” scientific information that possibly supports the claims made, and is therefore requesting substantiation from the respondent. The Directorate will therefore only rule on the complaint from this perspective.
The allegation insofar as the testimonial is concerned is clearly explained.
Objectively speaking, the advertisement makes three distinct and objectively verifiable claims that taking the product would:
Result in “INCREASE[ed] SEXUAL PERFORMANCE”,
Enable one to “GET BIGGER, HARDER, STRONGER ERECTIONS!”, and
If one consumes “KWIK-UP PILLS ONE HOUR BEFORE ACTION …” one would “… GET A BIGGER, HARDER, STRONGER ERECTION – FAST!”
The Directorate does not share the respondent’s view that the claims are acceptable simply because no specific quantifiable increase in performance, size or strength of erections is claimed. The fact remains that the advertising offers definite, noticeable and objective increase in the size, hardness and strength of male erections at a more rapid pace. Such claims require substantiation as per the Code.
Clause 4.1 of Section II states, inter alia, that advertisers shall hold documentary evidence to support all claims that are capable of objective substantiation. Clause 4.1.4 further states that documentary evidence, other than survey data, shall emanate from or be evaluated by a person or entity which is independent, credible, and an expert in the particular field to which the claims relate and be acceptable to the ASA.
The respondent submitted a document of what appears to be extracts from research documents where different ingredients and their effect on male sexuality health is discussed.
The problem the Directorate is faced with is that it is not a technical or scientific body able to interpret the information submitted. It therefore expected, as provided for in Clause 184.108.40.206 of Section II, the respondent to furnish it with a report emanating from an independent, credible, expert to confirm and verify that the submitted documentation confirms the exact claims made in the advertisement complained of.
In addition to this, the Directorate notes that none of the information supplied in support of the respondent’s claims appear to relate to the respondent’s product as it is sold in the market. This is problematic when considering the requirement for product-specific verification. It is trite that the Directorate requires substantiation relating to the product as a whole at the recommended dose (see Solal breast protection Formula / R Jobson / 18707 (15 February 2012) for comprehensive explanation). Accordingly, research relating only to ingredients supposedly found in the respondent’s product is of no use to the Directorate.
Given the absence of any independent, credible verification, there is nothing before the Directorate to unequivocally verify that that these studies, or even the ingredient-specific studies provide adequate support that the product as a whole has any positive effect on male sexual health.
For the sake of completeness the Directorate also notes that the letter provided from Judits Paarl Pharmacy is, at best, anecdotal and merely claims that their customers are pleased with the product. This is not adequate in terms of the requirements of product specific and unequivocal verification.
For the above reasons, the Directorate cannot, at this time, accept the substantiation submitted by the respondent. Accordingly, the claims “Increase sexual performance”, “Get bigger, harder, stronger erections!” and “Take kwik-up pills one hour before action and get a bigger, harder, stronger erection – fast” are currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code.
In light of the above finding, the respondent is required to:
withdraw these claims in their current format;
the process to withdraw these claims must be actioned with immediate effect on receipt of the ruling;
the withdrawal of these claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
these claims may not be used again in their current format in future until new substantiation is submitted, evaluated, and a new Directorate ruling issied.
The complaint is upheld in this regard.
The testimonial from “Simon” reads “My wife always complained that I did not satisfy her because my erections were too weak and soft. I could not keep it up for long. The chemist gave me Kwik-Up pills and now my erection is hard and strong and I can go all night. My wife will never leave me now.”
The complainant argued that the testimonial is not real and also makes unsupportable claims. He specifically referred to the provisions of Clauses 10.1 and 10.3 of Section II.
Clause 10.1 of Section II reads:
“Advertisements should not contain or refer to any testimonial or endorsement unless it is genuine and related to the personal experience over a reasonable period of the person giving it. Testimonials or endorsements which are obsolete or otherwise no longer applicable (e.g. where there has been a significant change in formulation of the product concerned) should not be used”.
Following from this, Clause 10.3 reads:
“Testimonials should not contain any claims to efficacy which cannot justifiably be attributed to the use of the product, and any specific or measurable results claimed should be fairly presented. Where ‘before’ and ‘after’ claims are made, they should be capable of substantiation, expressed and illustrated in such a way as to permit a fair comparison to be made”.
It has already been established that the respondent does not currently hold adequate substantiation for the efficacy claims made, and supported in the testimonial. More importantly, the respondent confirmed that it altered the wording slightly as well as the name of the person alleged to have provided the testimonial.
The actual testimonial originates from one “Wessel Germishuizen” from Carletonville. It reads:
“I am writing this letter to say thank you for helping me. I have tried other things which also did help, but your product is the best for me. My erections were not good and were soft. I could not keep it up for long so my wife was not satisfied.
I got your Kwikup pills and after using them my erection was strong and harder so I can now go for much longer at night.
My wife and I are much happier now”.
The testimonial on the advertisement reads:
“My wife always complained that I did not satisfy her because my erections were too weak and soft. I could not keep it up for long. The chemist gave me Kwik-Up pills and now my erection is hard and strong and I can go all night. My wife will never leave me now.”
Most notably, the actual testimonial makes no mention of:
the person’s wife contemplating leaving him, or constantly complaining as is suggested in the advertisement,
the chemist providing the respondent’s product (which could be interpreted as some sort of an endorsement as opposed to the person simply opting to purchase the product on his own accord),
the person being able to “go all night” (it merely states “… I can go for much longer at night”).
This already shows that the testimonial used in the advertisement is not “genuine”.
In addition, the respondent has decided to alter the name of the person alleged to have provided the testimonial. This adds to the argument that the testimonial is not “… related to the personal experience over a reasonable period of the person giving it”.
Accordingly, the testimonial as used in the respondent’s advertisement is currently in contravention of Clause 10 of Section II of the Code.
Given the above findings:
The respondent is instructed to withdraw the testimonial in its current format;
the process to withdraw the testimonial must be actioned with immediate effect on receipt of the ruling;
The withdrawal of the testimonial must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
The testimonial may not be used again in its current format in future.
The complaint is upheld in this regard.
The Directorate also draws attention to the fact that the Code requires signed and dated copies of testimonials to be available for inspection, and specifically states that fictitious characters may not be used for this purpose when the impression is given that real people are involved.