Posted 7 April 2013
A consumer laid a complaint against a range of claims being made for USN Phedra-Cut LipoXT. The ASA weighed up the evidence in support of the claims and found it to be insufficient, and ruled against USN concluding: USN has to “[R]efrain from using the advertisement and claims again in future unless new substantiation has been submitted and accepted by means of a new Directorate ruling (refer Clause 4.1.7 of Section II of the Code).”
|USN / RW De Lange / 20632|
Ruling of the : ASA Directorate
In the matter between:
Dr Rudi De Lange Complainant(s)/Appellant(s)
Ultimate Sports Nutrition (Pty) Ltd Respondent
27 Mar 2013
Dr de Lange lodged a consumer complaint against the respondent’s print advertisement appearing in the May / June 2012 edition of Fitness magazine.
The two-page advertisement shows the results of “Claudine Kidson’s” “BODY MAKEOVER” with the respondent’s Phedra-Cut LipoXT product. The subtitle refers to the product as “ADVANCED 2012 FORMULA, BASED ON THE LATEST STUDIE ON EFFECTIVE WEIGHT CONTROL, WITH NO GASTRIC DISCOMFORT”.
The advertisement also provides a summary of the benefits of some of the ingredients, such as “BANABA EXTRACT”, “CARALLUMA FIMBRIATA”, “N-ACETYL-L-CARNITINE” and “GREEN TEA”.
The complainant essentially argued that the advertisement is misleading, makes unsubstantiated claims, and fails to comply with certain provisions of Appendix E of the Code [it should be noted that this appendix has since moved to Appendix D]. He explained that the respondent does not hold substantiation that the product as a whole would deliver the claimed weight loss and appetite suppressant.
It appears that the complainant contacted the respondent for clarity and evidence, and is of the view that the evidence relied on does not relate to the product as a whole. He explained that “The net effect of the words in the advertisement is that the product is a result of science and that it will deliver the claim of weight loss and produce slimness. Upon closer inspection the advertiser actually means that individual ingredients were research[ed] and studied, by someone else, and not the product as a whole”.
From YouTube videos posted about Kidson’s progress and achievement, it is clear that diet and exercise played a major role in her transformation.
However, the advertisement does not make mention of the importance thereof as required by the Code. The disclaimer used is negligible, given no prominence, and relates the role of the diet and exercise to achieving “optimal” results, rather than emphasising that diet and exercise are crucial for any efficacy.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE The complainant identified the following provisions of the Code as relevant:
. Section II, Clause 4.1 – Substantiation
. Section II, Clause 4.2.1 – Misleading claims
. Appendix E – Advertising for slimming [this appendix is no Appendix D]
The respondent submitted that it does not conduct clinical research, but that it bases its developments on the clinical research of others (mostly published in peer-reviewed journals). Extensive research has been done on the individual ingredients in the products, their safety and effective dosages, toxicity and synergistic or interactive effects. It attached several studies done on the individual ingredients as “. grounding for the possible effects the product may potentially have as a whole”.
It added that it specifically refrains from claiming that the product will definitely induce weight loss. However, as with many botanical products, there is an implication that the product could possibly contribute to weight control, especially if used in conjunction with a balanced energy controlled eating plan and regular exercise. It is clear that the use of the product on its own will not in itself have definite weight loss effect.
Insofar as the reference to “WITH NO GASTRIC DISCOMFORT” it apologised for using this in a manner that could be confusing. It has since discovered that there are people who experience gastric discomfort even when consuming general caffeine products, so this claim will be removed going forward.
It added that the testimony provided by Ms Kidson is not meant, and does not communicate that the product on its own resulted in melting away fat. The testimonial clearly explains that the product “assisted” her, which any reasonable person would interpret correctly.
In support of its claims, it attached several articles published in various journals and websites.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
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 absolute discretion of the ASA, be accepted without considering the merits of the matter.
The respondent explained that it has since learnt that the claim “WITH NO GASTRIC DISCOMFORT” could potentially mislead people. It has therefore taken measures to withdraw this claim from future advertising.
The Directorate is satisfied that this will effectively address the complainant’s concerns insofar as this particular claim is concerned. The undertaking is therefore accepted on condition that the claim “WITH NO GASTRIC DISCOMFORT” is removed with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide.
Appendix E (now Appendix D)
The complainant specifically took issue with the provisions of Clauses 2.2.2 and 2.3.1 of Appendix E [now Appendix D].
Clause 2.2.2 (falling under the heading “Diet plans”) states:
“No claim, direct or indirect, should be made in any advertisement for a diet that it contains any ingredient which in itself has the property of hastening the process of mass loss. All foods have some kilojoule count and in a balanced diet it will be necessary to have foods with higher and lower kilojoule levels. There are no grounds for supposing that specific foods have particular properties which speed up the metabolic processes which cause excess fat to be “burnt-up” and thus mass to be lost”.
Clause 2.3.1, relating to “Aids to dieting: General” states:
“Diet aids, such as foods, food substitutes or appetite depressants, may not be advertised except in terms which make clear they can ONLY be effective when taken IN CONJUNCTION WITH OR AS PART OF a kilojoule-controlled diet.
Due prominence should be given, therefore, in all advertisements to the part played by the diet” (our emphasis).
The respondent correctly noted that Clause 2.2.2, dealing with “Diet plans”
does not appear to apply in this instance, as the product promoted is not a “diet plan”. The Directorate will therefore not consider this portion of the complaint.
Insofar as Clause 2.3.1 of Appendix D [previously Appendix E] is concerned, the Directorate agrees with the complainant that the advertisement does not give “due prominence” to the role of diet (and for that matter exercise).
The product is promoted by using “before” and “after” photographs of someone who has clearly lost a lot of weight, and now has a trim and tone body.
Words used include “FAT LOSS ACTIVATOR”, “A multiple phase fat loss activator, scientifically formulated to help burn kilojoules, manage appetite & boost energy” and “ALL DAY WEIGHT CONTROL” (on the actual packaging), as well as “LIPOLYSIS WEIGHT CONTROL TECHNOLOGY” and “BREAK DOWN FAT INTO ENERGY …” in the body copy. This places emphasis on the efficacy of the product in isolation, and suggests that the claims relate to using the product on its own (without diet and exercise, which the respondent admits was crucial to Ms Kidson’s achievements).
The message “for optimal results, combine with a balanced, energy-controlled eating plan and regular exercise” does little to correct this impression, and is hardly noticeable or “prominent” as expected by the Code. It is tucked away in the bottom right-hand corner of the page, in a font that does not contrast with the background colour. In addition, and more to the point, this message again implies that the product on its own will deliver on the efficacy claims, but if one wants to achieve even more results, one could combine diet and exercise.
In Bioslim Fat Attack / Dr HA Steinman / 4740 (20 June 2006), as cross-referenced with Bioslim / Dr S Goldstein / 1122 (10 March 2005) and Perc Slimming / Dr H Steinman / 1679 (14 January 2005) as well as Perc Slimming / Dr H Steinman / 1679 (10 March 2005), the Directorate pointed out that when weight loss claims are claimed to be true on the basis that the product is used in conjunction with a kilojoule restricted eating plan and exercise (as appears to be the case here) the claims must appear in conjunction with such a notice (also refer Bioslim Meal Replacement / J Gardener / 4531 (17 March 2006) and Bioslim Once a Day / Gardener / 589 (8 March 2005) for additional explanation of why the disclaimer needs to appear whenever efficacy claims of this nature are made).
The respondent’s reliance on the word “… assisted …” in Ms Kidson’s testimony makes no material difference.
Accordingly, the Directorate finds the advertisement in breach of the provisions of Clause 2.3.1 of Appendix D (previously Appendix E as identified by the complainant).
This aspect of the complaint is upheld.
Clause 4.1 of Section II stipulates that any direct or implied claims that are capable of objective substantiation should be verified by an independent and credible expert in the field. Seeing that the ASA is not a medical or technical body, it requires unequivocal verification that the product as a whole, when used at the recommended dose, will deliver on the claimed results (see Solal Breast Protection Formula / R Jobson / 18707 (15 February 2012) for comprehensive explanation).
The respondent was at pains to point out that the product “… possibly can CONTRIBUTE TO WEIGHT CONTROL, ESPECIALLY IF USED IN CONJUNCTION WITH A BALANCED ENERGY CONTROLLED EATING PLAN AND EXERCISE …” (respondent’s emphasis). It added that this product is not touted as a “quick-fix” but rather as something that would “… support weight control, possibly making the process easier”.
As established above, the Directorate does not agree that this is what the advertisement communicates. The overall tone and information, coupled with the imagery used and claims made suggest that the product was specifically formulated to achieve weight loss, burn fat and other analogous goals.
The research relied on by the respondent relates to some of the individual ingredients contained in the product, but nothing appears to relate to the product as is sold in the market and consumed by customers. In addition, there was no independent verification from a credible expert in the field that the claims made are adequately supported by evidence.
For these reasons, the Directorate does not regard the claims contested as substantiated within the meaning of Clause 4.1 of Section II of the Code.
This aspect of the complaint is therefore upheld.
The respondent is therefore instructed to:
Withdraw the advertisement and claims objected to by the complainant
Ensure that the process of withdrawal is effected immediately upon receipt of this ruling
Ensure that the process of withdrawal is completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide, minus the two weeks granted on extension (i.e. the respondent has two months and two weeks to comply)
Refrain from using the advertisement and claims again in future unless new substantiation has been submitted and accepted by means of a new Directorate ruling (refer Clause 4.1.7 of Section II of the Code).
The complaint is upheld.
In light of this, the Directorate does not need to consider the provisions of Clause 4.2.1 of Section II (Misleading claims) at this time.
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