I suppose it would be too much to expect the quacks to interpret correctly the legal framework for advertising. Heaven knows they have scant regard for the truth when plugging their snake oils. So I am going to explain what I have learned about the regulation of advertising, especially why what the quacks say about the Advertising Standards Authority is wrong.
A while back I actually became rather frustrated about the ASA’s lack of transparency regarding complaints about homeopathy. Every time I sent a complaint they said they were carrying out a sector-wide initiative regarding therapeutic claims, and took no immediate action. Of course, it has eventually emerged that they were negotiating with homeopathy organisations to get claims removed, which has been to some extent successful. This naturally stoked the ire of certain particularly militant quacks, notably one Jennifer Hautman.
I first came across her when she trumpeted her 7-step plan for repudiating the ASA. This makes hilarious reading, but of course other quacks will have taken it seriously. In reality it was a feeble attempt to spoof the internet in order to drum up business. I won’t reiterate the masterly take-down by the excellent http://wwddtydty.com, but I was reminded of the Hautman ploy when doing some formal research into regulation of health-related marketing claims. HealthWatch will shortly publish the results of that. As it happens, Hautman was one of the quacks selected for this research. At the time her site carried a huge range of misleading claims. They are not there now. Why is that? Surely she would simply have shrugged off any challenges and carried on regardless.
I can’t reliably identify the reason that she removed her claims. In our study complaints were made to Trading Standards not the ASA, but the former took no action so can’t take the credit. I do know that certain homeopathy organisations have been forced to advise their members to remove claims of efficacy, so maybe the ASA’s `sector-wide initiative’ was responsible. But I digress.
Having been reminded of Hautman’s conspiracist claims about the ASA, I was prompted to lay them to rest. Firstly, she claims that it is not a government body and it has no legal powers. Yet Trading Standards regards the ASA as `established means’ of enforcing the The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs). This means that, if you complain to Trading Standards they are authorised to refer the case to the ASA for enforcement. This is rather an odd situation as I shall explain later, but it did prompt me to ask the ASA what is behind it. They said:
In 1988, the introduction of the Control of Misleading Advertisements Regulations (the CMARs) provided the ASA with legal backing from the Office of Fair Trading (OFT). Those regulations enabled the ASA, for the first time, to refer advertisers who made persistent misleading claims, and refused to co-operate with the self-regulatory system, to the OFT for legal action. The Regulations provided that in considering complaints about misleading advertising, the OFT was obliged to have regard to “the desirability of encouraging the control, by self-regulatory bodies, of advertisements”. The DTI (as it then was) recognised the ASA as one such body.
Guidance produced by the Office of Fair Trading (in conjunction with BERR, as it then was) on the implementation of the Unfair Commercial Practices Directive in the UK, by the Consumer Protection from Unfair Trading Regulations 2008 (which replaced the CMARs), recognised that there are alternative well-founded and effective systems of regulation (including self-regulation) in place in the UK (known in the legislation – in Regulation 19(4) – as “established means”). If enforcers are satisfied that complaints and cases are clearly within the scope of these systems and can be adequately dealt with by them, they will be able to refer such complaints and cases to the relevant body (to ensure that businesses comply with the CPRs).
While the CMA has powers under the CPRs to take enforcement action in response to a complaint concerning misleading advertising, in practice the CMA will give existing compliance partners, in this case the ASA, the opportunity to deal with complaints in the first instance (see here, page 26 footnote 31).
The Government and the Courts recognise the ASA and CAP as the established means of regulating non-broadcast advertising. Both the ASA and CAP are accepted by the Department for Business, Energy and Industrial Strategy (BEIS) Trading Standards and the courts as the first line of control in protecting consumers and businesses from misleading advertising. You can read more information here.
So Jennifer Hautman, you are utterly wrong. The ASA has been legally backed since 1988. Is this why you removed your claims? Indeed, it is even more strongly backed now, as since 2013 Trading Standards has provide the legal backstop for the ASA. But maybe readers will have spotted a certain circularity here. The ASA has the power to refer non-compliant marketers to Trading Standards, who can take legal action which the ASA can’t. The ASA does have the power to impose other sanctions, such as constraining advertising with Google and other media, but not to take people to court. Trading Standards can do that, but can ask the ASA to deal with it first. I’m not aware of any cases that were referred upwards by the ASA and then back down to them, but technically it could happen. I think there could well be a practical bar to that as it would make both organisations look a bit silly and I think they are more sensible than that.
The rest of Hautman’s claims about the ASA are so transparently ludicrous that I won’t dignify them with detailed analysis here. I’ll be content with exploding one myth. She says that it is “funded by the major advertisers, including companies from the food, petrochemical and pharmaceutical industries“. The usual `big pharma’ conspiracy theory. Not quite true of course, it’s funded by all advertisers. If she advertises in the print version of What Doctors Don’t Tell You, she is funding the ASA via a levy on the bill she pays the magazine. It’s rather easy to cherry-pick the industries you don’t like. Obviously the bigger the advertiser the more they pay, which is fair.
Hautman also witters on about the quacks’ own advertising `regulator’ , grandiosely called the General Regulatory Council for Complementary Therapies. That HealthWatch study threw this one up as well. Another of the target advertisers was Halcyon Bracelets, operated by Sue Jarvis who claimed that copper bracelets could treat restless legs syndrome. This site originally carried GRCCT accreditation, claiming that this was a `rigorous industry standard’ for advertising. It may well be if that standard specifies that lying to consumers is allowed. After several months on the ASA’s non-compliers list, Jarvis was referred to Trading Standards, and behold all the claims disappeared. What price the GRCCT now? But Jarvis was not spent yet. The original site www.halcyonbracelets.com disappeared, replaced by www.halcyonbracelets.co.uk without any claims. Two more sites turned up, restlesslegsyndrome.org.uk, and www.halcyonbraceletsreviews.com. What a surprise, the former is exactly the same as the original www.halcyonbracelets.com. Does Jarvis seriously think that the regulators won’t notice?
You may wonder if we are going to get back to the ASA theme, and yes we are. restlesslegsyndrome.org.uk (I love the org.uk domain, implying that it’s non-commercial when it isn’t) is just a huge bunch of testimonials. Now the ASA has strict rules about those:
Marketers may not use testimonials to circumvent the Code by making claims in a consumer review that they would not otherwise be permitted to make. For example, if a marketer doesn’t hold the evidence to substantiate an efficacy claim, they cannot use a testimonial which makes that claim.
So you can’t delete all your direct claims and rely on testimonials. A testimonial that mentions a benefit is a claim. Also, you have to hold evidence that testimonials are genuine:
Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine and hold contact details for the person who, or organisation that, gives it (rule 3.45). Showing that a testimonial is genuine has two elements; showing that the quote is from a real person and that it reflects what they said.
So Jarvis is in breach on two counts – resurrecting original claims on another site, and relying on testimonials. But are these genuine? On this matter I am indebted to a colleague who has done a bit of analysis. As well as her own sites, Jarvis also markets widely just about anywhere it’s possible online. Amazon, Facebook, eBay – you name it she’s on it. It’s an interesting analysis – almost a controlled trial. She has taken two similar products as controls and mined data from the US and UK Amazon sites. Word counts are tabulated from all the testimonials for the three products, Halcyon Bracelets and the competitors. The claims include fibromyalgia as well as RLS. Fibromyalgia is more commonly diagnosed in the US than in the UK, so if it could be treated by copper bracelets, you’d expect it to come up even more often in reviews for copper bracelets sold in the US, but it is not mentioned once. Results are expressed as frequencies per hundred reviews for each product. Here are the results:
There is obviously a much higher frequency of certain words for Halcyon Bracelets, suggesting a common origin. This is without analysing the names of the reviewers. Curiously the relevant Facebook page shows that all the reviews were posted by the advertiser, although citing various customer names. Why don’t people post their own reviews? I think the ASA should ask for documentation that verifies that these people exist, and that they actually wrote all this. At this stage there is no solid evidence that Sue Jarvis has been inventing testimonials, but enough to suggest that somebody should look into it.
I have the utmost respect for the ASA, which operates rigorously and effectively. Would that publicly funded regulators were half as good. It is rather ironic that Trading Standards (specifically Camden Council) has agreed to act as their legal backstop, when their actual effectiveness is so much less. For a start, there are Trading Standards offices with only one officer. Funding has been cut in half since 2005. Then they have to reach a higher threshold for action than does the ASA, because they have to work on the basis of a possible prosecution, and be reasonably sure that they can win in court. On top of that, they sometimes don’t interpret the CPRs correctly, but that’s something for another post. Look out for the HealthWatch study appearing soon.