Posted 04 May 2015
This is an interesting ruling for, in 2013, we pointed out in a complaint to the ASA that USN was lying about the amount of protein in their product. Now USN has laid a complaint with the ASA against a competitor’s product, making the same argument. However the ASA examined the test report of the competitor and ruled against USN’s complaint.
RULING OF THE ASA DIRECTORATE
In the matter between:
ULTIMATE SPORTS NUTRITION (PTY) LTD – Complainant
SERFIE IMPORTS AND EXPORTS CC t/a NUTRITECH – Respondent
30 March 2015
NUTRITECH PREMIUM PURE WHEY LITE / USN / 2014-2028F
Attorneys Bouwers Inc. lodged a competitor complaint on behalf of Ultimate Sports Nutrition (“USN”) against claims made on the packaging of Nutritech’s Diet Meal product.
The packaging claims that the product contains “23g PROTEIN per serving”, and indicates that the serving size is “32g”.
The complainant submitted, inter alia, that the respondent’s “23g PROTEIN per serving” claim equates to a protein content of 71.8%. However, the complainant had the respondent’s product independently tested. The Kjeldahl and Dumas methods of testing were applied, and confirmed that the product does not contain the amount of protein claimed. In fact, the product contains 65.32% (Dumas method) and 61.8% (Kjeldahl method) protein, some 9% less than claimed. Accordingly, the respondent’s claim is unsubstantiated, dishonest and misleading.
The complainant further argued that the periods provided for in Clause 15 of the Procedural Guide for the withdrawal of packaging and internet advertising are, in the circumstances, excessive and should be reduced. In addition, it submitted that the respondent is a repeat offender and should be ordered to submit all future advertising to the ACA Advisory Service prior to publication thereof.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:
- Section II, Clause 2 – Honesty
- Section II, Clause 4.1 – Substantiation
- Section II, Clause 4.2.1 – Misleading claims
Mark Rossouw Attorneys, on behalf of the respondent, submitted, inter alia, that it relies on Final Product Specifications (“FPS”) specifically created for the purpose of product manufacture. Thereafter, it relies on Chemistry Certificates of Analysis (“COA”) when a new product is created. Once the production line is set up based on the FPS and COA, further COA’s can be obtained as and when necessary. The respondent obtains the raw materials for production from external suppliers who may differ from time to time, depending on the availability of materials in any given market place. The respondent is reliant upon those suppliers to ensure that there is no variance in the raw materials provided in terms of those COA’s. Variations which may exist in this regard are not at the instance of the respondent. In relation to foodstuffs, there will usually be some degree of variance in the ingredient content from item to item, and this is to be expected and accepted.
The respondent submitted test results from a laboratory, Michrochem Lab Services, in support of its claim. The test shows that the protein content of the product is exceedingly close to that specified on the label – a difference of 1.2 grams in a test with a margin of error of 1.9 grams. It argued that the variances between the test samples in respect of protein content are well within acceptable tolerances, not only of the laboratory tests but of food manufacturing as well.
South Africa does not currently provide a system which regulates what tolerance for discrepancy is allowed in respect of labelling of products such as this. In the premises, it is submitted that the parameters set out by the United States Food and Drug Administration (FDA) may be of assistance. The FDA’s Guidance for Industry: Nutrition Labelling Manual – A Guide for Developing and Using Data Bases is a guidance document written by the Center for Food Safety and Applied Nutrition at the FDA. It assists industry in the task of preparing nutrient information for labels and labelling that meet the requirements of FDA regulations.
To summarise the relevant section of the labelling guide, the FDA provides a formula of (laboratory value / label value) x 100 = %. Thereafter three categories of nutrients are presented. Protein is listed as a Class II Nutrient. This class is allowed an accuracy tolerance of 80% or more of the value declared on the label.
The independent results obtained by the respondent shows that the protein content is within 98.3% of the label, which is more than acceptable by FDA standards – standards that may be a good guide in assessing the present product in the absence of any other guides.
The respondent argued that there is no reason for shortening withdrawal deadlines, nor is there any reason for the respondent to have to submit its advertising to the ACA Advisory Service prior to publication.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The Directorate notes that although the complaint was lodged against the respondent’s claim as it appears on the product packaging and on the respondent’s website, the complainant only submitted images of the product packaging for consideration. Accordingly, the Directorate could not consider the respondent’s website claims in this matter.
Clause 4.1.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. Clause 4.1.4 states that documentary evidence other than survey data shall emanate from, or be evaluated by, an independent and credible expert in the particular field to which the claims relate and be acceptable to the ASA.
Clause 2 of Section II states that advertisements should not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge or his credulity.
Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.
The question in the present matter is, essentially, whether the respondent’s Premium Pure Whey Lite product contains the amount of protein that it claims on the product packaging. The complainant submitted that the product contains less protein than claimed.
The respondent claims that the product contains 23g of protein per serving, and that the serving size is 32g. Accordingly, the respondent effectively claims that the product contains 71.8% protein.
The respondent submitted a certificate of analysis from Michrochem Lab Services in support of its claim. In Nutritech Anabolic Mass Builder / USN / 2014-2015F, the Directorate considered Michrochem Lab Services (Pty) Ltd to be a prima facie independent and expert entity for the purposes of Clause 4.1.4 of Section II. There is no reason to deviate from that view in the present matter.
The certificate of analysis shows that the product contains 70.8g protein per 100g of product, which is equal to 70.8%. This is 1g (1%) less than the claimed amount. However, the certificate of analysis also states that the “Measurement of Uncertainty” is 1.9%. Accordingly, a deviation of 1% from the claimed amount appears to be acceptable. It is interesting to note that the results which the complainant claimed to achieve in two tests conducted on the same product differed by approximately 3.5%.
The respondent’s claim of 23g protein per 32 serving is therefore substantiated. In light of this, the Directorate is satisfied that the claim is not dishonest or misleading.
Accordingly, the respondent’s claim does not contravene Clause 2, Clause 4.1 or Clause 4.2.1 of Section II.
The complaint is dismissed.