USN Pure Protein Bar – ASA ruling

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Posted 10 October 2013

As with other USN products, the claims are simply outrageous and mostly nonsense. USN claims for their Pure Protein Bar that eating this will result in the following benefits: “• Promotes lean muscle tissue gains, • Muscle protection, • Weight management, • Sufficient glycogen for energy …” 

We said, nonsense! Rubbish! Show us the money! 

USN were unable to.

[note note_color=”#fcfcd4″]USN Pure Protein Bar / HA Steinman / 21757
Ruling of the : ASA Directorate In the matter between:
Dr Harris A Steinman Complainant(s)/Appellant(s) Ultimate Sports Nutrition (Pty) Ltd Respondent[/note]

02 Oct 2013

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6700

Dr Steinman lodged a consumer complaint against Ultimate Sports Nutrition’s packaging, as well as advertising thereof at www.usn.co.za.

The packaging contains, inter alia, the claim “PURE PROTEIN” and “DELICIOUS HIGH PROTEIN NUTRITION BAR”.

The website contains, inter alia, the following claims:

“USN PURE PROTEIN snack replacement bar is a convenient nutrition snack. It is designed for active people who demand the benefits of high quality proteins for optimum health, muscle recuperation and physical performance …

BENEFITS

• Promotes lean muscle tissue gains
• Muscle protection
• Weight management
• Sufficient glycogen for energy …”

COMPLAINT

The complainant submitted that:

1. The name of the product is misleading as the word “Pure” creates the impression that the product contains protein only, a suggestion that is contradictory to the requirements of The Agricultural Products Standards Act of 1990 (Act 119 of 1990).

2. The term “Nutrition Bar” is also contrary to legislation, as references to “wholesome” or “nutritious” are prohibited on the label or advertisement of a foodstuff.

3. There is inadequate scientific evidence to support the claims that are made on the respondent’s internet advertisement.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

The complainant identified Clause 4.1 of Section II (Substantiation) of the Code as relevant.

RESPONSE

After being granted an extension to respond to the matter, attorneys Hahn & Hahn, on behalf of the respondent submitted that it has changed the packaging of the product complained of as well as the internet advertising objected to.

ASA DIRECTORATE RULING

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

Packaging

The complainant submitted that the name of the product is misleading as the word “Pure” creates the impression that the product contains protein only. It does not, and is therefore contradictory to the requirements of The Agricultural Products Standards Act, 1990 (Act 119 of 1990). Similarly, his objections to the words “Nutrition Bar” were also couched in terms of the applicable regulations.

While the complainant may, or may not be correct in alleging that the product name contravenes the appropriate legislation, the Directorate cannot consider this issue, as it is not mandated to enforce the applicable laws which are administered by the relevant government authorities (such as, for example, the Department of Health or the Department of Agriculture).

In British American tobacco / K Williams and Others / 17013 (16 May 2011), the Directorate noted as follows:

“While the Directorate is mindful of the fact that there are laws in place that contain such restrictions, these laws and regulations are not administered by the ASA. Clause 13 of the Preface to the Code also specifically points out that the Code seeks to complement rather than replace legislation, and it would be nonsensical for the ASA to attempt to enforce or administer legislation that already falls within the jurisdiction of the appropriate regulatory authorities.

The Code does contain a provision requiring advertising to be ‘LEGAL, decent, honest and truthful’ (our emphasis). However, as noted in the Final Appeal Committee ruling under the reference Dunhill / P Ucko / 8978 (5 March 2008), this provision appears in the Preamble to the Code, and can only be said to have been contravened if one of the substantive clauses contained in the Code (refer Sections II through V) and/or the appendices to the Code have been contravened. This again suggests that the ASA is not able to pronounce on the legality of the respondent’s advertising, as there is no provision contained in these sections of the Code that prohibits the advertising of tobacco”.

The same reasoning applies here, and it would be improper for the Directorate to consider the product name, and make a finding on whether or not it is contrary to the legislation referred to by the complainant. Such an allegation would best be considered if placed before the appropriate regulator.

As such, the Directorate is not able to pronounce on this particular issue based on the complaint at hand.

Internet advertisement

The complainant submitted that there is inadequate scientific evidence to support the claims that are made on the respondent’s internet advertisement. The specific claims he highlighted are as follows:

“… It is designed for active people who demand the benefits of high quality proteins for optimum health, muscle recuperation and physical performance …

BENEFITS

• Promotes lean muscle tissue gains
• Muscle protection
• Weight management
• Sufficient glycogen for energy …”

Clause 4.1 of Section II of the Code requires advertisers to hold satisfactory documentary evidence of any direct or implied claims made. It stipulates that such evidence must emanate from, or be evaluated by an independent and credible expert in the field to which the claims relate.

The respondent did not attempt to substantiate the claims, and did not comment on this aspect of the complaint. It merely submitted that “Our client has already changed the packaging of the product complained of, without prejudice to its rights”. When the Directorate advised the respondent that “… your response only covers the concerns related to packaging and do not include issues raised with regard to USN’s website advertisement …” the respondent advised that “When our client amended the packaging of its product, it also removed all references on its website to PURE PROTEIN BAR”.

It is clear from the complaint that the product name was merely one of the concerns raised. The respondent has ignored the issue of substantiation entirely despite being alerted to the fact that it had not addressed the complaint insofar as its website claims are concerned.

In the absence of any substantiation, or any arguments why this portion of the complaint should not be considered, the Directorate has no alternative but to find that the respondent was making unsubstantiated claims in relation to this product.

Accordingly, the respondent has contravened Clause 4.1 of Section II of the Code.

By virtue of this, the respondent is instructed to:

1) withdraw the claims objected to by the complainant,

2) Ensure that this withdrawal is immediately actioned upon receipt of this ruling,

3) Ensure that this withdrawal is completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and

4) Refrain from making the claims disputed again in future unless new substantiation has been accepted by means of a new Directorate ruling on this issue.

The complaint is partially upheld.

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