Posted 28 July 2014
A consumer lodged a consumer complaint against advertising appear on USN’s website www.usn.co.za. The relevant page promotes the respondent’s “Carb Binder” product, which is punted as a “STARCH INTAKE INHIBITOR”, and appears under the banner of “RAPID WEIGHT CONTROL” products. USN have renamed the product Carb Binder after the ASA ruling against “Carb Blocker”! The complainant found the references to rapid weight control, or weight control in general to be unsubstantiated. He briefly outlined the research consulted to reach his conclusion, adding that there was no proof that StarchLite (the ingredient used in this product) is equivalent to the ingredient evaluated in the published studies from which the complainant draws basis for his grounds for complaint.
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
27 Jun 2014
Dr Steinman lodged a consumer complaint against advertising appear on the respondent’s website www.usn.co.za. The relevant page promotes the respondent’s “Carb Binder” product, which is punted as a “STARCH INTAKE INHIBITOR”, and appears under the banner of “RAPID WEIGHT CONTROL” products.
The advertising is the information webpage for the product and states, 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”.
In essence, the complainant found the references to rapid weight control, or weight control in general to be unsubstantiated. He briefly outlined the research consulted to reach his conclusion, adding that there was no proof that StarchLite (the ingredient used in this product) is equivalent to the ingredient evaluated in the published studies from which the complainant draws basis for his grounds for complaint.
In addition, starch blockers are medicines that require MCC registration. By selling a registerable product and omitting the fact that it is not registered, the respondent is misleading consumers.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant to this dispute.
The respondent submitted documentation in support of its product claims, but added that as a result of new regulations published by the Medicines Control Council (MCC), all its advertising would have efficacy claims withdrawn pending registration. Revised artwork for the packaging has already been produced, and should be on pack no later than 15 August 2014.
This particular product has actually been discontinued, and no future marketing would be done on this product.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has often said that medicinal products cannot be treated as an ordinary general commodity, as they have the potential for harmful as well as beneficial effects and can cause serious problems if not used safely. The point was also made that the ASA was not able or authorised to rule on the quality or safety of the product in question, and that the scope of any ASA ruling would be limited to the subject matter of the complaint brought to the ASA, namely whether the claims concerning the efficacy of the respondent’s product can be substantiated.
Prior to the publication of the MCC’s new regulations on complementary medicine, there has been a vacuum in the market. As a result of this, the regulator (MCC) did not investigate the legitimacy of these types of products, or the relevant efficacy claims made. The Directorate was therefore required to rule on such claims as and when they appeared in advertising.
The new regulations published in November 2013 specifically deal with these products, and outlines the process of registration as well as the requirements. Once the process has been finalised, the MCC will be able to pronounce on the efficacy and legitimacy of all such products.
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.
Under ordinary circumstances, the Directorate might well have had doubts over whether the mere removal of the contested claims would be sufficient, given the respondent’s history of doing so (refer the rulings under reference USN Phedra-Cut Hardcore / HA Steinman / 20411 for more thorough examples).
However, given that the MCC regulations have now been published, and given that the respondent appears committed to comply with them, the Directorate sees no need to go beyond accepting the respondent’s undertaking at this point in time.
The undertaking is therefore accepted on condition that the dispute advertising and all relevant claims is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future unless it accords with full approval from the MCC.
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