FLAWED: Consumer activist Dr Harris Steinman challenged an advert for Herbex Fat Burn for Men products and the ASA has agreed with issues raised. Picture: Rick Rycroft/AP
FLAWED: Consumer activist Dr Harris Steinman challenged an advert for Herbex Fat Burn for Men products and the ASA has agreed with issues raised. Picture: Rick Rycroft/AP

Burn your fat? Not a chance boet

By Georgina Crouth Time of article published Jun 4, 2018

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The ADVERTISING Standards Authority (ASA) might have no jurisdiction over non-members, but it can instruct its members to pull advertising that’s misleading.

Last week, the ASA issued yet another ruling against Herbex - this time after a complaint against an advert flighted during Carte Blanche. Consumer activist Dr Harris Steinman had taken issue with an advert for Herbex Fat Burn for Men products.

The ruling is significant because of last year’s Supreme Court ruling that the ASA was able to issue rulings to its members, even though it cannot order non-members to comply. The association can also only act on complaints from the public.

The advert, an animation featuring an overweight man attempting to paint his roof which collapses under his considerable weight, ends with his wife’s admonishment: “Boet, DIY doesn’t mean ‘destroy it yourself’. I told you to use Herbex.”

The advert closes with an image of the Herbex Fat Burn for Men Range of products with the wording, “Herbex for Men. Start today!” A disclaimer at the bottom of the screen then reads “To achieve and maintain your goal weight, you must adjust your lifestyle. A kilojoule controlled diet and healthy exercise programme are essential”.

Steinman, who has a history of challenging Herbex’s fat-burning claims, said the advert was misleading and unsubstantiated because Herbex Fat Burn Concentrate for Men attributes its claims to three main ingredients: Guarana, green tea leaves and Siberian ginseng.

“Herbex has previously recognised the Natural Medicines Comprehensive Database as a credible source. This source states that Siberian ginseng is an appetite stimulant. It also states that there is ‘insufficient evidence to rate’ green tea for weight loss, even at far greater levels that that used in the product,” Steinman told the ASA.

“The European Food Safety Authority has found that, even at greater doses than that used in Fat Burn, there is no causal relationship between these products and weight loss.”

Given Herbex’s past legal run-ins with the ASA, which it describes on its site as a “non-profit company masquerading as an organ of state and which had falsely claimed to be a statutory regulator, purportedly mandated by the Medicines Control Council (MCC) to regulate amongst other things, medicine, complementary medicine and foodstuff advertising”, and Steinman, Herbex did not respond to the complaint.

Herbex is not a member of the ASA and has doggedly refused to submit to its jurisdiction - even taking the matter so far as the Supreme Court, which found in its favour on September 29, 2017. But that judgment was interesting because it said while the ASA may “consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published”.

At the time, Herbex hailed the ruling, saying it was “vindicated”, while the ASA felt emboldened to “rule for the guidance of its members”.

Gail Schimmel, the chief executive officer of the ASA, explained: “A few years ago the ASA issued many rulings against Herbex. The Supreme Court essentially said we have jurisdiction over our advertisers so we must issue rulings. And we can rule against their advertising.”

Schimmel said the ASA is in talks with the Department of Health to ask them to allow the association to trigger investigations. “I am sending this ruling through to the DoH, the Health Products Association and the Marketing Code Authority (which self-regulate the marketing of health products of their members) but there is no formal process as yet.”

She said the ASA has a limited jurisdiction as they cannot insist products be withdrawn, which is why they need government intervention. “However, we have persuasive powers over our members - particularly the broadcasters because of the Broadcasting Act.”

Steinman, who publishes his evidence-based views on issues involving medicines, alternative and complementary medicines on Camcheck.co.za, has been a vocal and consistent critic about “scams, pseudoscience and voodoo science”.

He tested the Herbex Fat Burner for Men and found it only appeared to contain about a third of a bag of green tea, “at best”. Both the stated quantities of guarana and the claim that Siberian ginseng causes weight loss were false, he said.

“Herbex Fat Burn Concentrate for Men essentially claims that diluting between 7%-50% of a green tea bag and half a cup of coffee in 1 litre of water, to be drunk throughout the day, will result in weight loss. “I found how little green tea and active constituents were in it. The amount of guarana (source of caffeine) is insignificant. There’s no consensus it works. The third product they claim improves metabolism - Siberian ginseng’s traditional use is to increase weight gain. Essentially, the dosages are so low they are highly unlikely to work.”

Any weight loss can therefore not be attributed to the product but to lifestyle changes (noted in the product’s disclaimer) or placebo effect.

Whether or not such products work, Schimmel says it also comes down to choice.

“People must take responsibility for their own poor choices - they might just buy the product because of their belief system. At what point do we stop protecting consumers? It’s an interesting philosophical point in the regulatory space.”

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