USN Carb Binder – ASA breach ruling

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Posted 07 May 2015

A Breach allegation was lodged, arguing that this product is still being distributed and sold by retailers.   The ASA Directorate, however, accepted that the breach did not appear to be calculated and deliberate. Therefore any additional sanction beyond the immediate removal of the amended advertising is required at this time. USN was cautioned that the responsibility to ensure compliance with the ASA ruling lies with it.

USN “CARB BINDER” / H A STEINMAN / 2014 – 760 F
Ruling of the: ASA Directorate
In the matter between:
DR HARRIS A STEINMAN Complainant(s)/Appellant(s)
ULTIMATE SPORTS NUTRITION (PTY) LTD Respondent
23 April 2015

http://www.asasa.org.za/rulings/usn-carb-binder-hasteinman-2014-760f

BACKGROUND
In USN “Carb Binder” / HA Steinman / 2014-760F (27 June 2014) the Directorate accepted the respondent’s voluntary undertaking to withdraw its advertising pending full approval from the Medicines Control Council (MCC).

The advertising appeared on the respondent’s website www.usn.co.za, and promoted the respondent’s “Carb Binder” product as a “STARCH INTAKE INHIBITOR” under the banner of “RAPID WEIGHT CONTROL” products. The advertising stated, inter alia, the following:

“White Kidney Bean extract, used in StarchLite®, has been shown to decrease enzymatic activity involved in the digestion of starches, potentially assisting in a reduced level of carbohydrate uptake.

StarchLite® is an all-natural extract of white kidney bean (Phaseolus Vulgaris) which has properties of decreasing the digestion and absorption of carbohydrates. Starches that are eaten are either left undigested in the gut or the amount of which s digested, is reduced.

These starches are either excreted and their calories not absorbed, or they are given to colonic bacteria to ferment and strengthen microbiomes, also preventing unmanageable blood glucose levels”.

SUBSEQUENT TO THE RULING
On 10 February 2015 the complainant lodged a breach complaint, arguing that this product is still being distributed and sold by retailers that the respondent supplies, using packaging making the same claims, albeit not all.

For example, at http://www.kalahari.com/Health/USN-StarchLite-Carb-Binder-60-s_p_48305476, the product makes the claim that it is a “carb binder” (explicit in the name of the product) and states:

“White Kidney Bean extract, used in StarchLite, has been shown to decrease enzymatic activity involved in the digestion of starches, potentially assisting in a reduced level of carbohydrate uptake.

StarchLite is an all-natural extract of white kidney bean (Phaseolus Vulgaris) which has properties of decreasing the digestion and absorption of carbohydrates. Starches that are eaten are either left undigested in the gut or the amount of which is digested, is reduced.

These starches are either excreted and their calories not absorbed, or they are given to colonic bacteria to ferment and strengthen micro biomes, also preventing unmanageable blood glucose levels.”

The same holds true at M-Kem City Pharmacy (http://www.mkem.co.za/p22731/USN-Carb-Binder-60-Caps.aspx), where the following appears:

“StarchLite® is an all-natural extract of white kidney bean (Phaseolus Vulgaris) which has properties of decreasing the digestion and absorption of carbohydrates. Starches that are eaten are either left undigested in the gut or the amount of which is digested, is reduced.

These starches are either excreted and their calories not absorbed, or they are given to colonic bacteria to ferment and strengthen microbiomes, also preventing unmanageable blood glucose levels”.

The claims are similar, if not the same, indicating that the wording was furnished by the respondent. This suggests that the respondent has not adhered to the ASA Code and seeks to circumvent the ASA ruling.

Arguments were also submitted on why the complainant believes that there is no likelihood that the product would attain formal registration with the MCC as it had intended.

In subsequent correspondence, the complainant acknowledged that the www.mkem.co.za page referred to appears to have been removed since lodging the breach allegation. He added, however, that Dis-Chem (Canal Walk) confirmed that it still has “lots” of stock of the product.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.

RESPONSE
Attorneys Bouwers Inc, on behalf of the respondent, submitted a detailed response. It argued, inter alia, that it had discontinued the CARB BINDER product as previously submitted. It added that in June/July 2014, it introduced a new logo as well as a new plastic wrapper used on the lids of its products. The product images that appear on the www.kalahari.com page reflect the old logo and wrapping, which suggests that this is old advertising.

It also attached printouts from the Wayback Machine Internet Archive (which stores copies of websites as they appear at specific dates) to show that by 9 July 2014. The product had been removed from its website.

Despite the fact that the complainant provided no evidence to show that the pages he is taking issue with were accessed on a date that would render the respondent in breach, it confirmed with Kalahari that the unit advertised was literally the last unit in stock. Due to a minor discrepancy in the respondent’s records, it did not realise this, and therefore did not ask Kalahari to return unsold stock, as is usually the case. It added that the product has since been returned.

It has, since receipt of the breach allegation, been unable to access the M-Kem page referred to by the complainant. This was put to the Directorate and in subsequent correspondence the complainant confirmed that the page no longer exists. Given that M-Kem appears to have bought the product from a third-party, the respondent was not aware of this, and could not have actioned a recall. In any event, the fact that the page is not accessible means that there is no evidence that the product is still available via this website.

When the Directorate requested clarity as to when last the respondent disseminated stock of this product to Kalahari, it advised that a clerical error resulted in three units being supplied in November and December 2014, but argued that it is absurd to suggest that it would deliberately contravene ASA rulings for the sake of selling three units.

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

The question before the Directorate is whether or not the respondent’s advertising is in breach of the previous ruling. For this to be the case, the respondent would have to be making the same, or substantially similar claims to those originally ruled against.

It should also be noted that neither the respondent nor the Directorate was able to locate the M-Kem City page referred to by the complainant. This page will therefore not be considered in this ruling.

However, it appears common cause between the parties that the respondent’s product was still offered for sale on http://www.kalahari.com/health/USN-starchlite-Carb-Binder-60-sp 48305476 website. In fact, as of the date of this ruling, the product was still featured on the above URL (albeit that the product is listed as “Out of stock”).

By clicking on the “more” button embedded in the short summary, the very same text that was the subject of the original ruling appears. The respondent also conceded to disseminating three units to Kalahari subsequent to the original ruling, and as recently as November and December 2014.

While the respondent has now taken steps to comply with the previous ruling, this action is belated, and does not negate the fact that a breach has occurred.

The respondent is therefore found to have contravened the provisions of Clause 15 of the Procedural Guide.

The Directorate accepts, however, that this breach does not appear to be calculated and deliberate, as it would not make sense to risk sanctions in order to sell three extra stock units through www.kalahari.com.

Accordingly, the Directorate does not believe any additional sanction beyond the immediate removal of the amended advertising is required at this time.

The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.

The breach complaint is upheld, but no additional sanctions will be imposed at this time.

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