03 October 2014
As usual, USN show how untrustworthy USN are. First this product claimed to be able to block fat, but the ASA ruled against the claims being made. So USN simply changed the product’s name to Fat Binder. The ASA ruled against the claims for this product and the name. What has USN done? Simply changed the product’s name to Fibre binder! Same ingredient, same dose. Unbelievable. Major scam artists!
Will the ASA eventually hit them with very severe sanctions?
complainant DR HARRIS A STEINMAN
respondent: ULTIMATE SPORTS NUTRITION (PTY) LTD
15 September 2014
USN FAT BLOCK / HA STEINMAN / 20454
In USN Fat Block / H A Steinman / 20454 (25 April 2013) the Directorate ruled against the following claims, as well as the name “FAT BLOCK”, on the basis that the respondent was unable to adequately substantiate such claims:
- “EFFICIENT FAT BINDER”,
- “A clinically proven dietary supplement formulated to decrease fat absorption after a meal”,
- “NeOpuntia ®”,
- A logo featuring the words “CLINICALLY PROVEN” surrounded by “QUALITY INGREDIENTS”,
- “Supports Weight Loss”.
The respondent at the time was instructed to withdraw the claims and the name of the product with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
SUBSEQUENT TO THIS RULING
On 14 July 2014, the complainant lodged a breach complaint against the respondent’s “FAT BINDER” sold at Makro. He explained that this is effectively the same product, contains the same ingredient and makes the same type of efficacy claims. The only difference is that the name has changed from “FAT BLOCK” to “FAT BINDER” which is effectively the same thing.
The respondent is aware of the requirements of the ASA, and is bringing advertising into disrepute by deliberately flaunting the provisions of the Code and the previous ruling.
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) was considered relevant.
Attorneys Bouwers Inc., on behalf of the respondent, submitted that the breach allegation consists primarily of emotive and unsubstantiated claims and is of very little, if any, value when considering whether or not the respondent is in breach of the above ruling.
It explained that shortly after the previous ruling, it ceased using the FAT BLOCK product and advertising material. It substituted the FAT BLOCK product with the FAT BINDER product, which utilised different packaging and claims, as is evident from the material submitted by the complainant.
The earlier ruling does not prevent it from making reference to NeOpuntia in its advertising, and it was never disputed that its product, in fact, contains NeOpuntia as an element. The dispute focussed only on the clinical effect of NeOpuntia which the respondent was advertising. The complainant appears to accept that these products contain NeOpuntia.
The respondent further argued that the names FAT BLOCK and FAT BINDER differ conceptually; one is suggesting a product that “blocks” fat (i.e. keeps fat away, or prevents fat from entering or fat from forming), whereas the other suggests a “binding of fat”. As such, there can be no basis for submitting that the respondent’s substitution of the FAT BLOCK name and claim with the FAT BINDER name breaches the above ruling, especially as use of the name FAT BINDER, in the context of the amended packaging, does not constitute use of “the current format” of the name or claims referred to in the above ruling.
Similarly, the respondent is no longer using the claims “efficient fat binder”, “a clinically proven dietary supplement formulated to decrease fat absorption after a meal” and “supports weight loss” on or in relation to the FAT BINDING product. As such, the respondent is not contravening the above ruling.
The respondent concluded by noting that it has ceased using the name “FAT BINDER”. This has been changed to “USN BINDING FIBRE”. It no longer manufactures or advertises the FAT BINDER product, and has implemented measures to withdraw the product from the market including a recall of stock from Makro.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.
To do so, two key questions need answering:
- a) Did the respondent comply with the deadlines for withdrawal as articulated in Clause 15.3 of the Procedural Guide and/or the relevant ruling?
- b) Are the claims at issue the same or substantially similar to those ruled against?
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies. A key consideration in such matters is what action the respondent took to ensure compliance.
Furthermore Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”. It is trite that the Code needs to be observed in the spirit as well as in the letter (refer Clause 3.1 of Section I).
When comparing the original advertising to the version that gave rise to the breach allegation, the following becomes apparent:
1) The original “FAT BLOCK” packaging described the product as an “EFFICIENT FAT BINDER”. The new product packaging now reflects the product name as “FAT BINDER”.
2) The original “FAT BLOCK” packaging claimed that the product was “… formulated to decrease fat absorption after a meal. The new “FAT BINDER” packaging claims that it is “FORMULATED TO HELP REDUCE FAT ABSORPTION”.
3) The original “FAT BLOCK” packaging claimed that it was “A clinically proven dietary supplement …” and carried a logo reading “QUALITY CLINICALLY PROVEN INGREDIENTS”. The new “FAT BINDER” packaging carries the prominent claim “CLINICALLY PROVEN”.
4) The original “FAT BLOCK” product noted that it “Supports Weight Loss”, whereas the new “FAT BINDER” packaging prominently claims “WEIGHT CONTROL” and “WEIGHT CONTROL AID”.
It is clear from the above that the respondent’s claims in the current advertisement are materially similar to the original claims in the original advertisement. The underlying context of the above claims is substantially the same except for the name of the product.
In light of the above the respondent’s claims on “FAT BINDER” packaging are in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.
In light of this, the complainant is afforded ten working days to comment on whether or not sanctions are appropriate at this time, and if so, which sanctions in accordance with Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity to address this issue, following which the ASA will consider whether or not sanctions are warranted and if so which sanctions in terms of Clause 14 of the Procedural Guide.