ASA Adjudication on The Nutrition and Health Institute

Ad

a. A national press ad was headed "THE ARTHRITIS SOCIETY - FREE Book plus FREE Supplement." Body copy stated "Why would The Arthritis Society give away a book that normally sells for £7.95 for FREE? Ben Ong's 'All about Arthritis' contains very important dietary advice and scientific information that has never been published before outside of scientific circles. Our mission is to provide the public with information on how to prevent and fight Arthritis - we want you to discover that Glucosamine is not the only natural remedy for Arthritis. Why would The Arthritis Society give you a month's supply of a natural supplement for free that normally sells for £24.95, inclusive of P&P? Because we would like you to see for yourself what it does for you. This revolutionary formula is based on the latest science as detailed in 'All about Arthritis.' Can we GUARANTEE that 'Arthritis Comfort' will work for you? YES! To find out how - call the number given below. You will be expected to pay P&P. Call to listen to our five minute recorded message (24 hours) FREEPHONE 0800 XXX XXXX - for full information including our guarantee. You can leave your contact details, if you wish, to receive the FREE book and the FREE supplements." b. The message callers heard on calling the number given in ad (a) asked them to leave their contact details. The message stated "... we would like to send you a FREE copy of the book - All about Arthritis. It contains ... the latest scientific data on nutrients that are good for Arthritis. Glucosamine is a well known nutrient that helps. But it is not the only one. The book details many nutrients that will be unfamiliar to you. They may help your Arthritis ... we are also offering you a free month's supply of 'Arthritis Comfort' in order for you to try it for a minimum of three months ... our latest all natural supplement based on up to the minute science ... If you are enduring pain and discomfort then 'Arthritis Comfort' may help you. If you do nothing about your Arthritis, it will probably get worse ... we are not medical. Our approach is to use good nutrition. We recommend eating the right foods, not eating the wrong foods, and supplementing the nutrients that may improve joint and ligament health - we will show you exactly how to do that. You do not need a prescription for 'Arthritis Comfort' because it is not a drug. It is entirely natural food extracts in capsule form. That means if you are taking any kind of medication, 'Arthritis Comfort' will not interfere with that ... Nutrition deals with the underlying cause, in contrast with prescription drugs. Nutrition is also far safer. It is rare to the point of insignificance for food or vitamins and minerals to cause any harm. 'But does this work?' I hear you say. Well it seems to do so for many people but certainly not all people ... The bottom line is what we are offering you is a chance for pain-free mobility. In addition to the free supplement and free book we will actually guarantee that if you follow the nutritional advice in the book, and take our supplement for three months, you will get healthier joints, or your money back. Here is our guarantee. If after three months you do not feel 'Arthritis Comfort' has helped you, you simply tell us and you will get an instant refund for the supplements less the cost of postage and packing. In other words, we do more than give you the first bottle completely free of charge. If after three months you tell us we have not helped you, we will simply return your money for the supplements you have paid for ... all we ask you to pay is our cost of getting the free goods to you and pay for at least two further months supply so that you can get the chance to see it work over three months."

Issue

1.  Cheshire Trading Standards and a member of the public challenged whether the press ad was misleading because it was not clear that the advertiser was a commercial company.

Cheshire Trading Standards also challenged whether:

2.  ad (a) and

3.  ad (b) made medicinal claims about the prevention and treatment of Arthritis for an unlicensed product.

The ASA challenged whether the "free" claims in relation to the book and supplements in:

4.  ad (a) and

5.  ad (b) were misleading.

CAP Code (Edition 11)

Response

The Nutrition and Health Institute (NHI) said the ad finished its run in August 2008 and they had no intention of repeating it.  They said they did not consider ad (b) fell within the ASA's remit because they did not believe it fell within the definition of electronic material as defined by the Oxford dictionary and because it depended on the reader, rather than the advertiser, taking action (in this case, making a telephone call) to receive the ad.

1.  They believed it was clear that an ad that that was evidently for a commercial product must be from a commercial organisation. They believed there was nothing in the ad that claimed or implied otherwise.

2. & 3.  NHI disagreed that any element in either ad (a) or ad (b) could be interpreted as an actual or implied medical claim.  They said no cure was claimed and the product was not referred to as a treatment.  They said ad (b) asked the caller "'But does this work?' I hear you say.  Well, it seems to do so for many people but certainly not all people ..." They said the guarantee suggested the probability that many people trying the product would receive a refund because it did not work for them.  NHI said that, instead of a medicinal claim, ad (b) simply suggested people might like to see if, in conjunction with the nutritional changes recommended in the book, the supplement might give them some relief from pain.  They pointed out that the product was called "Arthritis Comfort" and not "Arthritis Cure."

4. & 5.  NHI said no charge other than postage and packing was made for the book and the supplement, which they believed entitled them to be referred to as "free" under the CAP Code.

Assessment

1.  Upheld

The ASA noted NHI's point that an ad that was evidently for a commercial product must be from a commercial organisation.  We considered, however, that the heading "THE ARTHRITIS SOCIETY" and the wording "Our mission is to provide the public with information on how to prevent and fight Arthritis ..." in ad (a) suggested the advertiser might be a research organisation or a non-commercial advice service rather than a commercial company in the normal sense.  If a reader had gained the impression from ad (a) that the advertiser was not a commercial company in the normal sense, we did not consider the wording of ad (b) would necessarily correct that impression.  We concluded it was not clear from ad (a) that the advertiser was a commercial company and that, as a result, ad (a) could mislead by omission.

On this point, the ad breached CAP Code clause 7.1 (Truthfulness).

2.  Upheld

We noted that ad (a) referred to "information on how to prevent and fight Arthritis;" "we want you to discover that Glucosamine is not the only natural remedy for Arthritis" and "Can we GUARANTEE that 'Arthritis Comfort' will work for you? YES!"  We noted their comments that the ad did not include the terms "cure" or "treatment."  We considered, however, that claims such as those above were medicinal.  Because we had not seen evidence to show that the product had a valid marketing authorisation, we concluded that the ad made medicinal claims to promote an unlicensed product and that it therefore breached the CAP Code.

On this point, ad (a) breached CAP Code clause 50.11 (Medicines).

3.  Upheld

We noted that, although readers of ad (a) needed to call the telephone number given in the ad to listen to the recorded message, its content was clearly intended to follow on from the content of ad (a) and that it therefore fell under the ASA's remit as follow-up material to ad (a) (CAP Code clause 1.1(a)).  We noted their comments that ad (b) referred to NHI providing information about nutrients that were "good for Arthritis" and which "may help your Arthritis" and that the ad stated, among other things, that the supplement seemed to work for many people "but certainly not all people."

We considered, however, that the statements elsewhere in ad (b), for example "If you are enduring pain and discomfort then 'Arthritis Comfort' may help you" and "we will actually guarantee that if you follow the nutritional advice in the book, and take our supplement for three months, you will get healthier joints" were medicinal claims.  Because we considered the claims made about the supplement were medicinal, and because we had not seen evidence to show that it had a valid marketing authorisation, we concluded that the ad made medicinal claims to promote an unlicensed product and that it therefore breached the CAP Code.

On this point, ad (b) breached CAP Code clause 50.11 (Medicines).

4.  Upheld

We noted NHI's response that no charge other than postage and packing was made for the book and the supplements; that ad (a) stated that respondents would be expected to pay for postage and packing; that the book was offered free of charge on the condition that respondents purchased supplements and that the month's supply of supplements was offered free on the condition that respondents purchased two months' supply of supplements, making three months' supply in total.  We understood a total of £7.90 was charged to respondents for postage and packing of the book and the supplements.  NHI, however, had provided no evidence or information that showed the actual postage cost of the book and supplements was £7.90.  We reminded NHI that the Code allowed marketers to claim an offer was free if consumers paid no more than the true cost of freight or delivery; it did not allow them to charge for packing, handling or administration.  Because ad (a) did not state the free items were offered only on the condition that respondents purchase two months' supply of supplements and because NHI had not shown that respondents paid no more than the minimum cost of postage to redeem the items referred to as free, we concluded ad (a) was likely to mislead.

On this point, ad (a) breached CAP Code clauses 7.1 (Truthfulness) and 32.1 (Free offers and free trials).

5.  Upheld

As with point 4 above, we noted NHI's response that no charge other than postage and packing was made for the book and the supplements; that the book was offered free of charge on the condition that respondents purchased supplements and that the month's supply of supplements was offered free on the condition that respondents purchased two months' supply of supplements, making three months' supply in total.  We also noted that ad (b) stated "all we ask you to pay is our cost of getting the free goods to you and pay for at least two further months' supply so that you can get the chance to see it work over three months."  We considered ad (b) contained sufficient information to make the extent of a respondent's liability for costs clear.  NHI, however, had still not shown the actual postage costs alone of the book and supplements was £7.90.  Because NHI had not shown that respondents paid no more than the minimum cost of postage to redeem the items referred to as free, we concluded ad (b) was likely to mislead.

On this point ad (b) breached CAP Code clauses 7.1 (Truthfulness) and 32.1 (Free offers and free trials).

Action

The ads must not appear again in their current form.  We welcomed NHI's statement that they had no intention of repeating them.  We told them to amend ad (a) so that it included information that The Arthritis Society was a commercial company; to remove the medicinal claims for an unlicensed product from ads (a) and (b); to amend ad (a) to state that the book and one month's supply of the supplements were conditional on the purchase of two months' supply of supplements and to amend ads (a) and (b) so that they did not refer to items as free unless NHI could show respondents paid no more than the minimum cost of postage to receive them.

Adjudication of the ASA Council (Non-broadcast)