ASA Adjudication on LighterLife UK Ltd

Ad

A TV ad, for a very low calorie diet, which appeared in September 2008, showed people playing trombones and dancing. A woman was dancing with a cardboard cut out of herself before she had lost weight. She stated “This was me. I couldn’t dance. I couldn’t even run upstairs. ‘Enough’, I said ‘I’m starting the LighterLife weight loss programme’. Seven months later, I looked like this”. She then danced with a male partner and text on screen stated “A very low calorie diet for people with a BMI of 30+. Subject to GP’s health check and monthly reassessment”. A female voice- over stated “With LighterLife you get the help of qualified weight loss counsellors”; the woman pushed the cardboard cut out away and said “I’ve kept the weight off for three years. I’ve changed my life for good with LighterLife”. Text on screen provided contact details as the voice-over stated “For obese people. Subject to GP’s initial and monthly check-ups”.

Issue

The complainant, who had been on the weight loss programme, challenged whether:

1. the diet was carried out under the supervision of a properly qualified medical professional;

2. the ad was harmful and misleading because it suggested the programme was a long-term solution to obesity; and

3. the ad breached the TV Code because it included a testimonial by someone who appeared to have been obese before using the service.

BCAP TV Code

Response

1. & 3. LighterLife described the position at the time the ad was broadcast in September 2008. They said that before embarking on the programme, clients who were taking prescribed medication that required monitoring, or who had a complex medical history, had a medical questionnaire completed by either their GP or a practice nurse at their registered practice. The form indicated the effect the diet might have on people with diabetes or high blood pressure and on those taking diuretic medication; it stated that the questionnaire allowed LighterLife to ascertain the patients medical status and operate exclusion criteria accordingly. They explained a private doctor could complete the form for those clients whose conditions and/or medication did not require monitoring. They said they also required clients on the very low calorie diet (VLCD) to have a brief medical review, including blood pressure monitoring, every 28 days. Clients were reminded when the reviews were due and for those who did not require monitoring, they could be completed by a private doctor, private nurse or pharmacist; other clients were required to complete the check at their registered surgery.

In addition, LighterLife said their counsellors had individual arrangements regarding the provision of any monitoring that was outside of a clients own GP practice; a registered nurse might visit the counsellors premises or counsellors might recommend a local pharmacy; however pharmacists should only provide the service if they felt sufficiently skilled to do so. LighterLife said they were supportive of pharmacists who required additional information or training before providing such a monitoring service. They said their counsellors had BTEC Professional Certificates in Operating a Weight Management Consultancy, which were equivalent to an NVQ level 4 or a foundation degree, and undertook subsequent Diploma courses. They provided the course syllabuses and a certificate of LighterLifes approval as a training centre by the exam board.

LighterLife said they had an in-house medical team, which was led by a physiologist and included a psychologist, a nurse and a nutritionist. They said they also had a clinical advisory team, who worked in the field and supported their weight loss counsellors; they also liaised with GPs and other healthcare professionals with an interest in their programme. The clinical advisory team was made up of nurses, a doctor and a former dietician. They said they also had a medical advisory board, which was established in May 2008 to oversee all clinical aspects of LighterLifes programmes and to review the inclusion and exclusion criteria for the programmes annually. They said the board included experts in obesity, metabolism, diabetology, endocrinology, clinical nutrition, psychology and psychobiology. LighterLife said the advisory board were aware in September 2008 that private doctors and nurses could be involved in the completion of the initial health questionnaire for patients who were not taking prescribed medication that required monitoring and did not have a condition that required monitoring. LighterLife said the board were also aware that the only involvement pharmacists would have would be in the completion of ongoing check-ups.

LighterLife were aware that the relevant section of the TV Code did not allow the use of testimonials from people who were obese before using the service if the programme concerned was not conducted under suitably qualified medical supervision; they said because their programme was conducted under such supervision however, it was acceptable for them to include such a testimonial. LighterLife said that they had added the reference to GP check-ups to the ad at the request of Clearcast.

Clearcast said their own medical advisory panel was consulted on the diet plan, and on the issue of medical supervision, and they were satisfied that the ad could be approved, subject to the inclusion of the reference to GP check-ups. They said it seemed the complainants counsellor had not followed the correct medical protocol because she had not been required to consult her GP before commencing the programme. Clearcast said LighterLife had assured them that was an isolated incident, which they would like to investigate further. They said the VLCD was aimed only at the clinically obese, which the voiceover and on-screen text made clear. They agreed it was acceptable to include testimonials from those who were obese before using the service if the establishment offered the programme under medical supervision.

2. LighterLife said weekly group counselling sessions, to address the root cause of clients weight gain and encourage long-term behavioural changes, were an integral part of their programme. They said those sessions differentiated their programme from other diets and their clients could opt to attend group counselling free, for life, after they had reached their target weight. LighterLife said it was that element of the programme that they referred to as long-term, not the very low calorie diet. Nevertheless, they said their future ads would not refer to long-term solutions.

Clearcast said the purpose of the counselling sessions was to provide support and a better understanding of nutrition as well as addressing any negative behavioural and emotional attitudes towards food. On that basis, they believed the programme was a long-term solution to obesity although viewers were likely to be aware that they would only get out of the programme what they put in.

Assessment

THIS ADJUDICATION REPLACES THAT PUBLISHED ON 3 MARCH 2010. THE WORDING OF POINTS 1 & 3 HAS CHANGED BUT THE DECISION TO UPHOLD REMAINS.

1. & 3. Upheld

The ASA noted that a VLCD was generally defined as a diet of less than 800kcal/day, and that LighterLifes diet involved approximately 530kcal/day. We sought the views of a number of medical or clinical bodies regarding what they considered would constitute adequate medical supervision for a VLCD. The National Institute for Clinical Excellence (NICE) Guidance summarising NICEs recommendations for the NHS on the treatment of overweight and obesity (published in December 2006), which was directed at a very wide range of health professionals, stated that any diet of less than 600kcal/day should be used only under clinical supervision. When consulted, NICE said it was important to note that by "clinical supervision" they referred to health professionals who were appropriately trained to provide interventions for obesity.

The Royal College of Physicians (RCP) advised that a responsible medical professional should be involved in most, if not at all stages, if an individual was embarking on a VLCD. The Royal Pharmaceutical Society of Great Britain (RPSGB), the regulatory body for pharmacists at the time the ad appeared, had, in 2005, provided a practice guidance note which indicated that advising on obesity in general would be within a pharmacists remit. The RPSGB told us that, in relation to pharmacists involvement in the management of obesity, their Code of Ethics stated that pharmacists must recognise the limits of their professional competence and practise only in those areas in which they were competent to do so; they should refer to others where necessary.

The Royal College of Nursing (RCN) believed it was difficult to give a definitive view on whether a practice nurse would be suitably qualified to have responsibility for the LighterLife health assessment questionnaire, because the level of medical supervision required could very much vary dependent on the individual clients history.

We obtained an expert opinion on what would constitute adequate medical supervision for a VLCD. The experts opinion was that, because of the nature of obesity, the associated likelihood of other medical conditions and the nature of the treatment programme, initial and/or follow-up assessment by any health professional who was not a direct member of the clients GPs team could not be considered adequate medical supervision.

The expert said in primary care overall responsibility rested with GPs and they could delegate continuing care to another appropriate member of the primary care team, usually a practice nurse. He considered that would be appropriate medical supervision for a VLCD, because the practice nurse would have access to a patients records and a consultation with the nurse would be recorded in the patients notes; the GP could therefore oversee the supervision. The expert noted some larger practices might include other health professionals, such as nutritionists or pharmacists, who were full members of the medical team; he considered their supervision would provide the same continuity of care in instances where the GP considered referral to them was appropriate.

The expert stated that a similar position would exist in a hospital setting. Normally the person with overall responsibility for a patient would be the consultant, but continuing supervision could be delegated to another appropriate health professional - this was likely to be a specialist nurse, nutritionist or pharmacist. These were all members of a team and continuity of care was ensured.

The expert noted that in rare instances where a private practitioner was involved, provided the practitioner was essentially providing continuing care and had full knowledge of the patient, then that could be considered appropriate medical supervision.

We were concerned about the degree to which the arrangements for medical supervision LighterLife said they had in place were actually operated in practice: a concern which was shared by our expert. It appeared clients routine treatment on the programme was supervised by weight loss counsellors who were not medically qualified and the complainant said that she did not need to see her GP at all. It also appeared that the four-weekly medical check-ups could be conducted by a pharmacist and that LighterLife had said their counsellors could make arrangements with a local pharmacy. In the experts view, community pharmacists were increasingly being used as providers of support and advice with respect to medication and lifestyle. He considered, however, pharmacist support for the monthly checks would constitute adequate medical supervision only if a pharmacist who was a direct member of a clinical team had been given delegated responsibility by a general practitioner, with whom they were in regular communication, and also had access to full patient details.

The needs of each client would differ and they could require different levels of medical supervision; the expert considered an initial check by a GP and monthly monitoring, by or under the direct authority of the GP, were essential to ensure adequate medical supervision. Because the level of supervision required by LighterLife for the VLCD was not only by a GP or under the direct authority of a GP, the treatment was not always carried out under adequate medical supervision.

The statement "Subject to GPs initial and monthly check-ups" should not have appeared in the ad, because it did not reflect accurately what happened in practice.

Because the programme was not always carried out under adequate medical supervision, the ad should not have been targeted at the obese and should not have included the testimonial of someone who appeared to have been obese before using the service.

On these points, the ad breached CAP (Broadcast) TV Advertising Standards Code rule 5.1 (Misleading advertising) and 8.4.5 (Obesity).

2. Upheld

LighterLife offered clients the option of continued group counselling after completion of the programme and it was that counselling the ad intended to imply was long-term. However the woman in the ad stated "Ive changed my life for good..." directly after she stated that she had "kept the weight off for three years". We considered that viewers were likely to interpret the womans statement, which was separate from that made by the voice-over about trained counsellors, to mean that the VLCD was a long-term solution to obesity itself. Because it was not, we considered the ad was misleading. We welcomed LighterLifes assurance that their ads would not refer to long-term solutions in future.

On this point, the ad breached CAP (Broadcast) TV Advertising Standards Code rule 5.1 (Misleading advertising).

Action

The ad must not be broadcast again in its current form. LighterLife must not target obese people unless the treatment was conducted under adequate medical supervision: either by a GP or a healthcare professional who was a direct member of a clinical team and had been given delegated responsibility by a general practitioner, with whom they were in regular communication, and also had full access to full patient details; or, in rare instances, by a private practitioner who was providing continuing care and had full knowledge of the patient.

Adjudication of the ASA Council (Broadcast)