Posted 07 May 2014
USN claimed that this product is an “Ergogenic aid” and “Testo Booster”. A complaint was laid claiming that these claims are not justified and cannot be proved to be true.
USN responded by saying that the claims would be removed from the website and the product.
17 Apr 2014
Dr Steinman lodged a consumer complaint against a USN internet advertisement promoting its 19-Testo Mass product. The advertisement was published at www.usn.co.za/product/hardcore/testosterone-boosters/19testo-mass-112.html.
It contains a photograph of the advertised product’s packaging as well as a brief description. Under the title “BENEFITS”, it lists “Ergogenic aid” and “Testo Booster”.
The complainant submitted, in essence, that the claims are not supported by studies in humans and are therefore misleading to average consumers about the product. He outlined the research conducted to support his allegations.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant.
The respondent explained that recent amendments to the Medicines Act were published in November 2014. As a result of these, it has already had to amend its packaging pending registration with the MCC. The claims have also been removed from its marketing material, including its website, until the product is registered with the Medicines Control Council.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In terms of the Code and a long-standing principle held in previous rulings, the Directorate has discretion in terms of deciding whether or not an unequivocal undertaking to remove or amend the advertising complained of is an adequate resolution to the matter.
The respondent’s confirmation that “… all the claims have been removed from packaging …” and that “The claims are also being removed from marketing material (including website) …” appears to address the complainants’ concerns and there is therefore no need for the Directorate to consider the merits of the matter at this time.
The undertaking is accepted on condition that the claims in question are not used again in future in their current format, or at least not until approved and registered by the MCC.
It should be noted that at the time of ruling, the respondent’s website still listed “Ergogenic aid” under “BENEFITS” and featured this description at the top of its page. It also still describes the product as a “TESTOSTERONE BOOSTER” at the top and bottom of its page. If the respondent wishes to avoid a potential finding of breach against it, it should ensure that these claims, which were specifically objected to by the complainant, are removed within two weeks from the date of this ruling.