Nonsense Education

For many years I have strongly supported the Advertising Standards Authority. It is staffed by excellent people who know the difference between real medicine and quackery, and between evidence and opinion. When necessary they are not slow to call in expert help, and their decisions are usually robust and evidence-based.

The ASA is funded by a levy on advertising, so it’s quite remarkable that their remit was extended some years ago to cover traders’ own websites – from which no levy could be collected. This must create a great deal of extra work, with such a massive growth in online commerce, but the ASA continues to deliver. Would that every other regulator were as efficient.

Recently however I submitted a complaint that was rejected. The reason given was quite new to me – “out of remit”. Let me explain. The advertiser was The Centre for Homeopathic Education. You will see that their website offers a wide range of courses on homeopathy, and that in support the usual therapeutic claims are made:

WHAT CAN HOMEOPATHY TREAT?

Among the most common conditions people seek homeopathic treatment for are:

allergies, such as food allergies
arthritis
asthma
chronic pain conditions such as headache
digestive issues
ear infections
hay fever
high blood pressure
insomnia
mental health conditions, such as depression, stress and anxiety
skin conditions such as acne and eczema

In my complaint I drew attention to the blog which appears on the CHE site, where some posts go into detail about what homeopathy is claimed to treat. I was particularly concerned about the claims for neurodegenerative diseases.

I normally see quite prompt action from the ASA, but not this time. Their standard response time is 10 working days, but some 2½ months after their initial acknowledgment I got this:

While I acknowledge a considerable amount of time has elapsed since the complaint was made, and express my sincere apologies for this delay we are still currently considering these concerns. I hope to get back to you shortly with more information once this becomes available.

It was another month before I heard any more, and the message was so unexpected that it’s well worth reading in full:

Thank you for contacting us about The Centre for Homeopathic Education’s advert and for your patience whilst we have been considering your complaint.

We asked the ASA Council to make a decision on the content you objected to, however after careful consideration, they have decided that the issue falls outside the remit of material the ASA is entitled to regulate.

The Issue(s)

Your complaint was that The Centre for Homeopathic Education’s ad was misleading because you did not believe the advertiser has robust evidence to substantiate the medical claims made on the page in question.

Our Remit

In relation to material online, the Scope of the CAP Code states:

I The Code applies to:

h. Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.

The ASA Council’s decision – Out of Remit

In the case of the page you highlighted for us, while the claims were obviously connected to homeopathy, Council concluded that they were not directly connected to the provision of a service and for this reason they fell outside of our remit.

Council noted that at the bottom of the article there is a section promoting links to services offered by the advertiser. They considered however that this segment is presented separately to the rest of the article and neither its content nor the services it promotes are related to the content of the article. Additionally they noted that this section is also present on other articles on the website whose content is similarly unrelated to these services. As such, Council concluded that this material would not bring claims within the article itself into remit and so the content in question should not be classed as a marketing communication as defined by the Code. Therefore, we have not assessed whether the advertising rules were broken in relation to the efficacy of homeopathy.

Action taken

Although we will not be taking your complaint further, we have made the advertiser aware of the issues that were brought to our attention by yourself so that they are aware of concerns around the claims.

One begins to see why this took so long. An ungenerous reader might wonder if they were trying to work out how not to take any action. The argument supporting `out of remit’ seemed to me specious at best, and disingenuous at worst. That therapeutic claims were unconnected to the offer of educational courses was a bizarre conclusion. I responded thus:

Many thanks for your reply. I am totally baffled by the Council’s decision that the advertiser is not supplying anything. The Centre for Homeopathic Education exists to provide education in homeopathy. Surely that is the service? How could it not be? In what way are the following claims not connected with the service of education?

WHAT CAN HOMEOPATHY TREAT?
Among the most common conditions people seek homeopathic treatment for are:

allergies, such as food allergies
arthritis
asthma
chronic pain conditions such as headache
digestive issues
ear infections
hay fever
high blood pressure
insomnia
mental health conditions, such as depression, stress and anxiety
skin conditions such as acne and eczema

This is what the advertiser says to customers who pay for its courses. The ASA has decided that there is no robust evidence that homeopathy is effective for any condition, so for anyone to charge money for courses that are centred on these claims is fraudulent. Please reconsider this decision, which makes no sense.

But the ASA was undaunted, and came back with:

Thank you very much for your reply and I appreciate your point. I should mention however that for material appearing on the advertiser’s own website (i.e. in non-paid for space under the advertiser’s control) to be within the ASA’s remit this has to:

· Be an advert or marketing communication

· Be directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities

In this case the ASA Council considered that while the blog post is promoting homeopathic remedies, as the Centre for Homeopathic Education is not a retailer of these materials then there is not a direct link to the article’s content and the provision of goods or services offered by this organisation. While I recognize this is material that is likely to be included in the educational courses which can be purchased through them, Council considered as these educational services were not being directly promoted in the article the material you objected to did not pass the above conditions and so should be treated as editorial content rather than advertising as defined by the Code.

Should you still wish to take your complaint forward now that it has been assessed by the ASA Council you can request an Independent Review. The Independent Review process is open to advertisers, complainants or broadcasters who have been a party either to a Final Ruling of the ASA Council or a Council decision not to further investigate a complaint beyond initial assessment.

A party has 21 days from the date on the ASA’s letter of notification of the final decision to ask the Independent Reviewer of ASA rulings to review the case.

The Independent Reviewer can only accept the request if one or both of the following tests is established:

· a substantial flaw of process and/or ruling

· additional relevant evidence is available that could not reasonably have been made available during the investigation

I pointed out that this obsession with the blog posts was diverting their attention from the main thrust of the website, which was to sell courses based on false claims about homeopathy. I drew their attention again to the list of conditions under WHAT CAN HOMEOPATHY TREAT? But they stuck to the independent review option, so that’s what I requested. I didn’t expect it to change anything, and it didn’t:

I have now been able to complete my consideration of your request to me that I review the decision by the ASA Council not further to investigate your complaint about the website advertising by the Centre for Homeopathic Education (CHE). The central issue in this case is whether there was a substantial flaw in the Council concluding that the ad was outside of the ASA’s remit.

The question I have to address is whether the Council’s conclusion that the claims complained of were not within its remit is defensible and reasonable. I have to say at the outset that it does seem to me that the Council applied the right test as it considered whether or not the material in the ‘blog’ was “directly connected” with the supply or transfer of goods, services, opportunities and gifts. Of course the claims were clearly connected to homeopathy but the content of the content of the claims in the ad, the ‘blog’, did not refer to homeopathic education, which is the service provided by the CHE. The link to their courses was presented separately and was there on most pages of the website as a ‘permanent feature’. The page did not provide a link by which people looking at the site could purchase the products mentioned in the blog. The Council therefore concluded that the material complained of did not meet the ‘direct connection’ test and was therefore editorial.

The Council could clearly have taken a different view. It can be argued, as your review request implies, that the purpose of the ad’s top ten homeopathic remedies was to attract readers to homeopathy, stimulate an interest in it, and then, although separate, to offer courses about homeopathy just one click away. I therefore have real sympathy with your concern that while the claims for efficacy may be technically separate from the offer of education services the message to some readers is that they are all-of-a-piece as far as a consumer is concerned. However, as I explained in my letter to you of 12 May, I am not allowed to substitute my judgement for that of the Council. My responsibility is to understand the Council’s reasoning and to decide whether that reasoning was defensible and therefore reasonable. You should know that it is clear from the file I have read that the Council did not come to its decision lightly; indeed it discussed the arguments for and against the ad being in remit or not at its monthly Council meeting. The Council then made a clear, albeit fine, distinction between the claims for homeopathy itself and the service provision for education courses. If the advertised service at the foot of the page had provided a link that said “find a homeopathist” and which then enabled anyone interested to go to one, then the result might have been different. For your information that was what happened in a previous case where the Council decided that claims for the alleged benefits of acupuncture were found to be in remit because a “find an acupuncturist” button led consumers to link directly to contact details for an acupuncture service by entering their postcode.

My conclusion, having considered the facts and the history of this case, is that, despite presenting me with a well-argued review request, you have failed to persuade me that the Council has acted unreasonably and so I am afraid that I cannot invite the Council to instruct the Executive formally to investigate your complaint. I shall therefore proceed to close my file on the case. I realise my decision, which is final, will be a disappointment to you, and for that I am sorry.

So to summarise, the reviewer was not empowered to decide whether the Council was right or wrong, but whether its decision was reasonable. It appears possible to be wrong but reasonable. I am not sure whether this could be described as an effective review process. What do you think? As ever, there is more to this than meets the eye.

Clearly, the content of a training course has a certain value as perceived by those paying for it. There are of course many training offerings that are far from evidence based, but surely it depends on what is claimed. For much of my career I provided training in project management for clinical research, but I made very few claims for how effective this method was. In reality there is a vast body of literature which backs up project management, to which I rarely needed to refer as most participants were very well aware that it is a discipline with a century or so of robust research and practice. The CHE courses are entirely different, as they are necessarily based on the claims that the providers clearly make on their website. The question is, if the claims are not relevant to the commercial offering, why make them? The body of knowledge on homeopathy is of course not at all robust with regard to effectiveness, so the CHE can’t rely on an external consensus.

I feel this is more a `can of worms’ problem. Is the ASA worried about opening the floodgates to more complaints about educational offerings? The time taken to deal with this complaint is surely a measure of how difficult they have found it to make a decision. They are sympathetic to my view but have sadly resorted to weasel words, which is both surprising and not surprising. The former in that the ASA normally takes a clear, evidence based position, and the latter in that they don’t want to make a rod for their own backs.

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4 Responses

  1. Les said:

    So to summarise, the reviewer was not empowered to decide whether the Council was right or wrong, but whether its decision was reasonable. It appears possible to be wrong but reasonable.

    I think this is the same stance as taken in judicial reviews: was the decision (assuming it was taken in accordance with the rules set out) reasonable in the circumstances – not whether or not it was the only decision that could have been taken or even the best decision, just whether or not it was not unreasonable or irrational to have come to that decision.

    I do wholeheartedly agree with you that the claims made about homeopathy on that website are there to entice visitors to buy the service they are selling – they are part and parcel of the advertising for their service. The distinction between what constitutes the selling part of the website and the so-called blog is entirely artificial.

  2. Hi there.

    Having just found your website and read your damning attack on Dr Jessica Braid, I can only reply by saying how wrong I feel you are in your opinion of her.

    Dr Braid is no quack; she has been chosen by Almighty God to help others, including myself, who did not receive treatment through conventional medicine practitioners.

    It seems to me, that in our modern age, quackery abounds, not in alternative methods of medicine, but in the ‘respectable face’ of conventional medicine. So, what on earth then has happened in the practice of conventional medicine for it to decline to this appalling level; whereby countless people like myself, are, or have been, kept chronically ill, when it is possible to bring about healing?

    The answer to this question I believe lies in our modern system of medicine that is utterly controlled and dominated by Big Pharma, and whose only intention is to make money, and lots of it, by keeping people unwell. This is a great tragedy and the consequence of living in an evil world.

    The Great Physician, Jesus Christ, has, for thousands of years, been supplying man with natural medicines found in botanical plant life. Therefore, it makes me weep when I see the excellence of God’s ways to treat illness pushed aside, ignored, treated disdainfully and regarded as quackery. If it wasn’t for herbal medicine I would not have received my health back.

    May the gracious Lord keep you in good health, and have mercy on your soul. He loves you and knocks on the door of your heart.

    In Christian love
    Janet

    • So many fantastical claims, so little evidence. Well, none, actually.

    • Presumably you mean the Gracious Lord who created the worm that burrows into the eyes of African children and makes them blind? Or sends tsunamis and hurricanes that kill thousands? Or gave me cancer? I sincerely hope that one day you are cured of this delusion.

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