NutriTech 100% Pure Whey – ASA ruling

Posted 13 October 2013

USN are simply put, scoundrels.

Here they laid a complaint against a competitor arguing that the claims for their 100 Pure Whey Protein was untruthful. Well, I laid a complaint against USN for the same thing a year ago!

NUTRITECH 100% PURE WHEY / USN / 2014-1239F
Ruling of the: ASA Directorate
In the matter between:
ULTIMATE SPORTS NUTRITION (PTY) LTD Complainant(s)/Appellant(s)
SERFIE IMPORTS AND EXPORTS CC t/a NUTRITECH Respondent
09 October 2014
Attorneys Bouwers Inc. lodged a competitor complaint on behalf of Ultimate Sports Nutrition (“USN”) against the packaging of Nutritech’s 100% Pure Whey product.

The packaging claims that the product contains “24g PROTEIN per serving” and “2g CARBS per serving”, and indicates that the serving size is 30 grams.

COMPLAINT
The complainant submitted, inter alia, that the respondent’s “24g PROTEIN per serving” claim equates to a protein content of 80%, and the “2g CARBS per serving” claim equates to a carbohydrate content of 6,7%. However, the complainant had two of the flavours of the respondent’s product, namely the “Cookies and Cream” and “American Ice Cream Soda” flavours, independently tested. The Kjeldahl and Dumas methods of testing were applied, and confirmed that the product does not contain the amounts of protein and carbohydrates as claimed. In fact, the product contains 25% less protein than claimed, and 18% more carbohydrates than claimed. Accordingly, the respondent’s claims are unsubstantiated, dishonest and misleading.

The complainant requested the Directorate to reduce the period for withdrawal of the respondent’s packaging from three months to two weeks, as the complainant had alerted the respondent of the fact that its claims are factually incorrect as long ago as 28 November 2013, and because the respondent is intentionally seeking to delay the phasing out of the infringing packaging.

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
RESPONSE
Mark Rossouw Attorneys lodged a response on behalf of Nutritech. It submitted arguments on the merits of the matter, and submitted confidential evidence in support of the disputed claims.

It also submitted, however, that on or about January 2014, it had to make certain specification changes to the product in order to improve it and make it more competitive. After having received test results conducted on the improved product, new labels were made (which also indicated the ingredient information per 100 grams, so as to be in line with food labelling guidelines). The product’s name changed from “100% Pure Whey” to “Premium Pure Whey” on the new label.

The respondent submitted that only the product with specification changes and with the new labelling has been distributed since May 2014. It confirmed that the packaging complained about, and the claims objected to, are no longer in use, and will not be used again in future. It further submitted that, to the extent that certain 100% Pure Whey products may still be in circulation, this is understandable and its presence in the marketplace will dwindle as it is no longer in production or being supplied to vendors.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

The respondent has confirmed that, as of May 2014, it has only distributed the product with new specifications and new labels, and that the label and claims objected to by the complainant are no longer in use, and will not be used again in future.

The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking may, at the discretion of the ASA, be accepted without considering the merits of the matter.

The respondent’s undertaking appears to address the complainant’s concerns, and there is therefore no need to consider the merits of the matter at this time.

The respondent’s undertaking is accepted on condition that the packaging and claims complained about are not used again in future.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

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