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Posted 28 July 2014
In USN 19-Testo Mass / H Steinman / 2014-700F (17 April 2014) the Directorate accepted USN’s voluntary undertaking to remove the offending claims from its marketing material, including its website, until the product was approved and registered by the Medicines Control Council. The undertaking was accepted on condition that the claims in question were not used again in future in their current format, or at least not until approved and registered by the MCC. A new complaint was laid arguing that similar claims were still being made.
The ASA concluded that comparing the original material complained of with that currently under scrutiny, it cannot be denied that material changes have been made. In fact, the website advertising complained of by the complainant does not contain offending claims that were dealt with in the original ruling.
USN / 19-Testo Mass / H Steinman / 2014 -700F
Ruling of the : ASA Directorate
In the matter between:
Dr H A Steinman Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd t/a USN Respondent
25 Jun 2014
In USN 19-Testo Mass / H Steinman / 2014-700F (17 April 2014) the Directorate accepted the respondent’s voluntary undertaking to remove the offending claims from its marketing material, including its website, until the product was approved and registered by the Medicines Control Council.
The undertaking was accepted on condition that the claims in question were not used again in future in their current format, or at least not until approved and registered by the MCC.
The advertisement at the time contained a photograph of the advertised product’s packaging as well as a brief description. Under the heading “BENEFITS”, it listed “Ergogenic aid” and “Testo Booster”.
SUBSEQUENT TO THE RULING
On 11 May 2014 the complainant lodged a breach complaint against the respondent’s website, www.usn.co.za/product/hardcore/testosterone-boosters/19testo-mass-112.html.
The complainant submitted that the respondent has a history of simply altering claims and continuing to either invent new false, unsubstantiated claims for the product ruled against, or to simply use alternative language to make the same claims, and not implementing the ASA Code and regulations across the board for all products.
Although the respondent has now removed the offending claims from the product, continues to make unsubstantiated claims for the product. The website now contains the following unsubstantiated claims:
“PERFORMANCE AID”; and
“Agmatine Sulfate is thought to improve nutrient partitioning thus leading to more glycogen storage and increased water retention within the muscle. It also helps increase the level of nitric oxide (NO), which can increase the “PUMP” that athletes look for when weight training.”
These claims are made to induce consumers to purchase the product. Therefore consumers have an expectation that this product will aid performance and that the product may or can increase the “PUMP” that athletes look for when weight training.
The ASA should implement the harshest sanctions possible, preventing USN from placing any advertisements in any form of media until all their products comply with the ASA Code.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
Bouwers Attorneys, on behalf of the respondent, submitted that the original complaint objected to the following claims on the basis that they were false:
The claim that this product “is a TESTOSTERONE BOOSTER”; and
The claim that this product is an “ergogenic aid”.
The ASA accepted the respondent’s confirmation that the claims would be removed from all media, and ruled that the matter may be disposed of on the basis that the respondent does not in future use the claims that its 19-TESTO MASS product “is a TESTOSTERONE BOOSTER” and “ergogenic aid”.
The complainant also concedes that “Although USN have now removed the offending claims from this product, they have continued to make unsubstantiated false claims for the product”. It is trite that unless the claims to which a ruling relates are used again, no objection can be raised in terms of an existing ruling and the ASA has no discretion to consider a possible breach as provided for in Clause 15 of the Procedural Guide of the Code.
Although the claims to which the complainant now refers relate to the same product advertising, the complaint must be dealt with in terms of the provisions of the Code. The ASA should either reject the objections as without substantiation or formally investigate such complaints. The new complaints can clearly not be dealt with as a breach of the original ruling or complaint.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is currently only tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. To do so a consideration of whether or not the current advertising is materially different to the original advertising is required.
Comparing the original material complained of with that currently under scrutiny, it cannot be denied that material changes have been made. In fact, the website advertising complained of by the complainant does not contain offending claims that were dealt with in the original ruling.
In light of the above, the respondent cannot be said to have breached the provisions of Clause 15.3 of the Procedural Guide.
Breach complaint is dismissed.
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