INSIDER Law

Advertiser of probiotics agrees to discontinue claims following Procter & Gamble challenge

The National Advertising Division, a self-regulatory body administered by the Council of Better Business Bureaus that examines advertising claims of dietary supplements and other products, on Wednesday announced two decisions involving dietary supplements, plus one involving a sports drink competing with Gatorade.

Procter & Gamble Company, maker of Align probiotic supplements, challenged the advertising claims of a competitor who asserted its products are “15x more effective than others,” resulting in the advertiser discontinuing its statements.

Procter & Gamble made a challenge before the National Advertising Division (NAD), a self-regulatory body administered by the Council of Better Business Bureaus that examines advertising claims of dietary supplements and other products.

Procter & Gamble and Hyperbiotics Inc., whose advertising claims were challenged, consented to NAD closing its inquiry regarding several health-related performance claims, the self-regulatory body announced Wednesday in a press release.

According to the press release, Hyperbiotics stated in writing that it chose to permanently discontinue all remaining claims, including:

  • “Our formulas are 15X more effective”
  • “15X more effective than others”
  • “Get 15 times more results than with capsules”
  • “15X more effective than capsules”
  • “Designed for weight loss support”
  • “Designed to support your metabolic function”
  • “Designed to promote optimal urinary function and to normalize the healthy growth of yeast”
  • “Promotes upper respiratory health while training”

NAD explained it relied on Hyperbiotics’ representation that the challenged claims have been permanently discontinued, so it “did not review the claims on their merits.”

According to NAD, Hyperbiotics expressed gratitude in its advertiser’s statement to NAD “for its expeditious resolution of this matter. Prior to the receipt of the challenge, Hyperbiotics was already in the process of updating its packaging.

“Hyperbiotics is committed to ensuring its advertising is truthful, accurate and respects the advertising industry self-regulatory process,” the advertiser’s statement continued.

Commenting for this article, Julie Hays, VP of communications with Hyperbiotics, echoed the statement above.

She added in an email: “Our community of customers is the heart of our organization, and we pride ourselves in being an honest, authentic, and inspirational brand they can trust with their microbial education and journey toward healthier days. With proven superior survivability, we wholeheartedly stand by our products and are optimistic about the path ahead.”

Procter & Gamble did not immediately respond to a request for comment.

In a separate press release Wednesday, NAD announced its determination that Internet advertising claims made by Health Club Diet Inc. for its Androzene dietary supplement were unsupported, and NAD recommended the advertiser discontinue its claims.

NAD asked the company to substantiate advertising claims that included the following:

  • “…nourishes cells so you have maximum size, maximum hardness, and maximum stamina.”
  • “…faster, bigger, and harder erections.”
  • “Improve your sex life naturally”
  • “Boost sex drive and increase blood flow.”
  • “Androzene uses clinically tested ingredients that will increase blood flow to the genital region in response to sexual stimuli.”
  • “Physical arousal – A quicker and bigger reaction to intimacy.”
  • “Androzene is an all-natural scientific breakthrough that uses patented technology to increase a man’s desire, firmness, stamina, and sensitivity.”

In support of its advertising claims, the company relied on a medical expert’s report examining numerous studies on two ingredients contained in Androzene’s proprietary blend: caffeine and yohimbe. NAD, however, identified flaws in the ingredient studies. For example, NAD said most of the studies tested different doses of caffeine and yohimbe than the amounts found in Androzene.

While Health Club Diet said in its advertiser’s statement it disagreed with many of NAD’s findings, it accepted the self-regulatory body’s decision in its entirety.

“In the spirit of supporting self-regulation, Health Club Diet had already taken steps to discontinue some of the challenged claims during the proceeding and agreed to discontinue any remaining challenged claims,” NAD disclosed. “It also stated that it will endeavor to consider the NAD conclusions in any potential future advertisements.”

Health Club Diet did not immediately respond to a request for comment.

Although NAD does not have the power to force an advertiser to abide by its decisions, it can refer cases to an agency within the federal government—the FTC—for an investigation. On Wednesday, NAD announced making such a referral after an advertiser of a sports nutrition drink, BA Sports Nutrition LLC, declined to comply with its recommendations to modify or discontinue certain claims.

Stokely-Van Camp Inc., the maker of Gatorade sports drinks, had challenged advertising claims related to Bodyarmor SuperDrink that included the following:

  • BodyArmor is “a better sports drink”
  • BodyArmor is “more natural”
  • BodyArmor provides “better hydration” and “superior hydration”
  • Gatorade is “outdated”

Following its review of the evidence, NAD recommended BA Sports Nutrition discontinue certain claims and modify challenged commercials to avoid conveying Gatorade is inferior or “outdated.”

In its advertiser’s statement, BA Sports Nutrition said it disagreed with NAD’s findings and would not comply with its recommendations, prompting NAD’s referral to the government.

BA Sports Nutrition and Gatorade did not immediately respond to a request for comment.

Since 2006, the Council for Responsible Nutrition, through its CRN Foundation, and NAD have worked together to increase monitoring of dietary supplement advertisements.

In a 2017 interview with Natural Products INSIDER, Rend Al-Mondhiry—then associate general counsel of CRN and now senior counsel with the law firm Amin Talati Upadhye LLP—said the monitoring program has helped ensure companies “are playing by the same rules, and we think it’s gone a long way in building consumer confidence in the industry and trust in advertising."

TAGS: Litigation
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