ASA Rulings Recap November 2021
Once again, the Advertising Standards Authority has upheld a number of rulings relating to misleading health claims. Whilst the first two relate to the BCAP Code, lessons can still be learnt from them. Emily Vickers, Paralegal takes an in depth look.
A radio ad for Copper Clothing in November last year stated “Your face mask, it may look good but does it offer the protection for others and your loved ones against Covid-19? Copper Clothing have created a face mask that does just this. Copper Clothing’s copper-infused face mask destroys 99.99% of Covid-19 in a matter of minutes.”
The ASA received one complaint challenging whether the claim that the mask could destroy “99.99% of Covid-19 in a matter of minutes” was misleading and could be substantiated.
Copper Clothing provided two studies which related to the Covid-19 virus, two other tests on other coronavirus strains, four studies and fabric analysis in relation to MRSA, two articles on copper-infused fabric and one test report in relation to influenza, which they believed were sufficient to substantiate the claims. They stated that the facemask was not PPE.
UPHELD – The ASA felt that listeners were likely to understand the claim to mean that the Copper Clothing face mask could rapidly kill Covid-19 particles that it came into contact with and would protect the wearer from contracting the virus. They also held that the listeners would understand that the active element of the face covering would take effect with a high level of efficacy very shortly after contact, if not immediately.
The ASA did consider the evidence provided, but highlighted the fact that most of the tests did not relate to the Copper Clothing face mask itself or Covid-19 specifically. The ASA also considered that the testing did not take into account how the abilities of the mask would be affected by factors involved in the real-life use of the mask. The ASA considered that the timings given by Copper Clothing were not in line with the rapid effect consumers were likely to understand the mask had from the ad.
The ASA considered that the impression given by the ad that the mask could rapidly kill Covid-19 particles and it would protect the wearer from contracting the virus had not been adequately substantiated and therefore they concluded that the ad was misleading and in turn breached the code.
BCAP Code – 3.1 – misleading advertising, 3.9 – substantiation, 11.2 – medicines, medical devices, treatments and health.
Lessons to be learnt:
All adverts and promotions which make any claims must have reliable and valid evidence to reinforce them. Whilst Cooper Clothing Ltd provided a broad range of evidence to back up their claims, none of it really related to the specific masks or Covid-19. Without the proper evidence, the ASA will be strongly inclined to rule against a brand and decide they misled the consumers.
A 48-minute teleshopping presentation for ProLife CBD Oils which was seen on the Gemporia television channel featuring a presenter from Gemporia and one of the co-founders from ProLife CBD. Throughout the ad they both made a number of claims about the health benefits of the products, whist referencing that the products were registered with the Food Standards Agency.
Two complainants challenged whether the claims that:
- ProLife CBD Oil was effective for treating or helping with the conditions and illnesses referenced in the ad stated or implied that a food prevented, treated or cured human disease
- CBD oil “helps with:General well-being” and “helps your immune system” were health claims that complied with the Code.
The ASA challenged whether the presentation misleadingly implied that ProLife CBD Oils were approved by the Food Standards Agency.
Gemporia responded acknowledging that they had breached the Code on all issues and said that their future advertising would adhere to the Code.
UPHELD – the ASA considered that consumers would understand from the ad that the oils could treat or help with all the conditions mentioned. The ASA concluded that the claims implied the product, a food, prevented, treated or cured human disease, which was prohibited under the Code.
Only health claims authorised on the NHC Register can be made in ads promoting foods or food supplements. The ASA considered that viewers would understand the claims “helps your immune system” and “Helps with: General well-being” to be health claims and as there were no authorised health claims for CBD on the NHC Register, the claims both breached the Code.
The BCAP Code requires that ads must not claim that the advertised product had been approved, endorsed or authorised by any person or body if it has not or without complying with the terms of the approval, endorsement or authorisation. As the products were still under review by the FSA and the novel foods application process considered factors other than the quality of the product, the ASA concluded that the ad misrepresented the requirements for novel foods authorisation and misleadingly implied the ProLife CBD Oil products were approved, endorsed or authorised by the FCA.
BCAP Code 13.6 and 13.4 – food, food supplements and associated health or nutrition claims, 13.7.1 – vitamins, minerals and other food supplements, 3.1 – misleading advertising, 3.47 – endorsements and testimonials.
Lessons to be learnt:
Before making claims about whether products have been approved, endorsed or authorised by any person or body, brands cannot make claims to that effect otherwise they will be misleading.
London Medical Academy
The London Medical Academy’s website promoted medical courses at universities across Europe. Text stated “guaranteed placement to study medicine … Choose from the following courses at Universities all recognised by the GMC (General Medical Council) …” One of the Universities listed was Kiev’s International European University, in Ukraine.
One complainant who understood that the International European University’s licence to offer higher education courses had been revoked, challenged whether the claim that it was recognised by the GMC was misleading.
The London Medical Academy provided a screenshot which they said showed that the International European University was licensed. They also provided links to the GMC website page which listed their criteria for acceptable overseas qualifications and what medical qualifications they accepted and didn’t accept. They also supplied a document which they said showed that the International European University had its licence reinstated by April 2021.
UPHELD – the CAP Code requires advertisers to hold documentary evidence to support objective claims, prior to making them. As the London Medical Academy provided the ASA with no evidence that the International European University had a license to offer higher education courses or was recognised by the GMC at the time of the complaint. They considered that the impression given by the ad was that all courses offered by the London Medical Academy were recognised by the GMC and were accredited higher education courses had not been substantiated and was therefore misleading and in breach of the CAP Code.
CAP Code 3.1 – misleading advertising, 3.7 – substantiation.
Lessons to be learnt:
If a brand makes a claim, they must have the documentary evidence in place substantiating the claim, before they make it, otherwise the ad will be misleading.