In September the Medical Nutritional Institute (MNI) requested an urgent interdict against the Advertising Standards Authority of South Africa (ASA) to prevent it from prohibiting advertisements for their product AntaGolin.
AntaGolin claims to fight insulin resistance in the body, thereby encouraging weight loss.
The supplement manufacturer USN (Ultimate Sports Nutrition) is also threatening legal actions against the ASA if it continues enforcing its “alleged authority” on the company.
The South Gauteng High Court granted the interdict against the ASA because MNI products are regulated by the Healthcare and Consumer Protection Act. The ASA is not recognised as a statutory regulator within this act.
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The court also found that MNI could suffer considerable harm if AntaGolin advertisements were prevented from appearing on ASA members’ platforms. This means that the ASA may not prohibit AntaGolin advertisements.
The ASA was also ordered to remove findings from its website that there is not sufficient clinical proof that AntaGolin is effective.
In May, USN, in a lawyer’s letter, questioned the ASA’s competence to decide on the effectiveness of their products. They are also threatening to take the ASA to court if it made any further negative comments about their products or prohibit their advertisements.
In the period from January 2013 to May 2015 the ASA made at least 30 decisions against USN to force them to remove statements about the effectiveness of a number of their products.
The ASA for instance found that there was no clinical proof that the USN product Fat Block reduced fat absorption after meals. USN then changed the product’s name to Fat Binder.
Bordering on intimidation
USN and MNI are also suing Dr Harris Steinman, director of Food and Allergy Consulting & Testing Services for respectively R2 million and R200 000 because he said, following on the ASA’s findings, that advertisements for these products were not far from being scams.
Professor George Claassen, a professor in science communication and media ethics at the University of Stellenbosch said that these interdicts border on intimidation because Dr Steinman was acting in the interests of public health. He added that these companies are using the courts to circumvent the process of self-regulation.
Dr Cliff Johnston, spokesperson of the South African National Consumer Union said that the verdicts of these court cases are very important because the ASA is the only organisation able to hold companies liable for the products they advertise.
Albé Geldenhuys, founder and CEO of USN, however, believes that Steinmann used the ASA to launch a personal attack on USN, damaging their products and business.
(Translation and summary of an article by Elaine Swanepoel)