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GNC reportedly to file suit over banned Super Bowl ad

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By Hank Schultz

03-Feb-2017
Last updated on 03-Feb-2017 at 17:54 GMT2017-02-03T17:54:16Z

A still from GNC's ad.  GNC photo
A still from GNC's ad. GNC photo

GNC reportedly is considering filing suit over the NFL's rejection of the company's Super Bowl ad. While the rejection has been called hypocritical, a sports consultant said he wasn't surprised. 

“I think it’s fundamentally hypocritical,” Dan Fabricant, PhD, CEO and executive director of the Natural Products Association, told NutraIngredients-USA. “The NFL has something like 3,500 athletes and I think probably most of them take supplements.”

Fabricant said that it seemed a stretch to single out GNC while at the same time taking ads from some other potentially questionable marketers. If the NFL is concerned about a few of the products that GNC sells, how can it at the same time put its stamp of approval on alcohol consumption?

“The NFL takes ads from beer companies.  They take ads from Amazon, and Amazon sells supplements of all kinds,” he said.

Two substances on banned list

According to USA Today, which first broke the story, a memo from the NFL and the players union listed GNC is listed as a “prohibited company”. The article said the memo warned players not to endorse or have a business relationship with GNC because it has been “associated with the production, manufacture or distribution of NFL banned substances”.

GNC marketing director Jeff Hennion told the newspaper that the company does sell products that contain two substances banned by the NFL — DHEA, an anabolic agent, and the stimulant synephrine.  The NFL has a list of more than 100 banned substances.  Hennion said 3% of the products sold by the store contain the banned substances.

"We had no discussion with the NFL, or anybody,” Hennion was quoted as saying, “which is unfair because if we’d had those discussions, we could have put into place a plan to take those two ingredients to zero.”

According to a report in the industry publication Advertising Age, GNC has sent a letter of intent to Fox Broadcasting Inc. announcing its plan to pursue legal action over the rejection. According to the publication, GNC claimed that Fox approved the ad more than once and did not inform GNC that the NFL had to approve it also, nor that the league had a specific policy on advertising.

GNC did not respond to a request for comment in time for the posting of this article. For its part, the company is not backing away from the ad.  The spot, titled "Courage to change", is featured prominently on the company's website.

Is it just about liability?

Fabricant said the rejection of the ad seemed more calculated on future liability than on a judgement of GNC’s business ethics per se. Blaming supplements for failed drug tests seems to have become the excuse du jour for athletes.  Earlier this season Chicago Bears receiver Alston Jeffery blamed a supplement for his failed test that cost him a four-game suspension for the use of a performance enhancing drug (PED).  Jeffery alleged the failed test came from taking a “recommended supplement” to combat inflammation that contained a substance “banned by the NFL”. 

“If an athlete tests positive and fails a drug test an attorney out there could make the case that the NFL had in fact approved that because they took the ad from GNC,” Fabricant said.

“When you look at the issues of the use of pain killers among players and the issues surrounding the concussion lawsuits, can you then say this is an indication that the NFL somehow cares about public health? Come on,” Fabricant said.

Consultant: Process unusual, but rejection of ad makes sense

Chicago-based sports business consultant Marc Ganis said the way that the ad was rejected was unusual. But he said it’s not beyond the pale for the league to turn down advertisers.

“It’s not frequent for it to happen at this stage because the NFL and the networks deal with that before the finished ad gets to them,” he said.

Ganis said that the league’s views on what is and isn’t acceptable does change over time as the views in the wider society change. After all, the league is currently in the process of moving a team to Las Vegas, the epicenter of sports gambling. It’s a development that would have been inconceivable a generation ago.

“We all know that as time moves forward what’s not acceptable today might be acceptable 150 years from now,” he said.

Ganis said that the issue of PEDs is a thorny one for the league, as it has been for most sports certifying bodies around the world. NFL commissioner Roger Goodell’s consistency and integrity in dealing with a number of issues (the concussion question among them) has been roundly criticized by mainstream media sports commentators, but Ganis said that he doesn’t think the banning of the GNC ad should count as another black mark on that ledger.

“There are some who will say this is hypocritical. The NFL takes ads for Viagra. They take ads for beer. But supplements are what GNC does;  for Amazon they are just a few of the millions of products they have. The distinction here is that some of the supplements at GNC are on the prohibited list for players and that is a very big distinction,” Ganis said.

Ganis also said that Super Bowl ads are a different animal from advertising that might appear in the course of the season. The league might not be able to as tightly control ads on all of the many affiliate stations that broadcast games in local markets. But the Super Bowl is the flagship product, he said.

“They are more sensitive than they might be at other times, because the audience is so large,” he said.

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