ASA Adjudication on Express Newspapers

Ad

The Monitoring team identified that the Daily Express was routinely publishing what appeared to be full-page features for various products. The top half of the pages was presented as an article containing information about a product, including efficacy claims for that product. The articles were written by Alison Coleman and they appeared under the heading “express lifestyle - to advertise in this section call 0871 xxx xxxx or e-mail”. The bottom half of the pages featured an ad that contained information on where that same product could be bought.

The Daily Express featured almost identical pages on the product, LadyCare, three times in a two-month period. The top half of those pages was presented as an article and the bottom half was presented as an ad.

Information in the top half explained that LadyCare would relieve menopausal symptoms, it referred to a clinical trial that demonstrated the product produced positive results and it gave the LadyCare web address for more information. Two of the pages had photographs with captions stating “JUMPING FOR JOY: using LadyCare has given thousands of women a new lease of life” and “COOL CUSTOMER: LadyCare can bring relief from hot flushes and night sweats”.

The lower half explained where the LadyCare could be bought and its price. The bottom half of all the pages stated “It’s time for a change - for further information on how LadyCare may help relieve the symptoms through the change of life, go online www.ladycare-uk.com ”. One of the pages also stated “Do you recognise yourself? Grumpy, sleepy, itchy, sweaty, bloated, moody and forgetful.”

Issue

Monitoring staff challenged whether:

1. the top half of the pages was controlled by LadyCare Lifetime Ltd rather than the publisher and if so, why this had not been made clear,for example, by inclusion of the term advertorial;

2. evidence substantiated the claims that the LadyCare relieved the symptoms of the menopause.

CAP Code (Edition 11)

Response

1. The Daily Express explained that Alison Coleman had followed the usual journalistic practice of speaking to LadyCare Lifetime Ltd as part of her research.  She sent them the finished text to check for factual inaccuracies.   The Daily Express added that the journalist had not been paid by the LadyCare Lifetime Ltd and the advertiser had no right to change the content of the text.  

2. LadyCare Lifetime Ltd said that the ad complied with their agreement with the OFT.  They said that they had had nothing to do with the article written by Alison Coleman.

Assessment

1.  Upheld

The ASA noted that the articles were always and uniquely favourable to the product featured in the accompanying ad and contained claims that have been or would be likely to be prohibited in advertisements.  We noted that the same or substantially similar articles had appeared on different dates; we considered that whilst it was normal for advertising copy to be repeated on different dates, it was unusual for genuine editorial pieces to appear in the same or similar form in the same publication on different dates.  We noted that the articles gave the companys website address for more information about the product featured in the ad.  Although we accepted that, at first sight, the articles appeared distinct from the ads that featured below it, we considered the information presented in the articles complemented and added to the information provided in the ads.  We considered that the average reader would have understood the entire page to be a feature on the product, no matter the distinct styles of the top and bottom of the pages.  We considered that by using that approach, the publisher and advertiser were intentionally attempting to circumvent the Code by asserting the top of the pages were not advertising.  We concluded that the routine publication of these pages and the  nature of the articles strongly suggested a commercial arrangement existed between the newspaper and the advertiser and that the advertiser exerted a sufficient degree of control over the content of the articles to warrant the term "Advertisement feature" or the like being placed above the articles.   

On this point, the top half of the pages breached CAP Code clauses 23.1 and 23.2 (Advertisement features).

2. Upheld

We noted that all the top half of the pages referred to potential side-effects caused by HRT and offered a natural solution to menopausal symptoms, LadyCare, a magnotherapy product.  They all referred to the results of a trial conducted on over 500 women and that symptoms such as mood swings, difficulty sleeping, sudden weight gain, feelings of doom and marked fatigue were reduced by up to nearly 70% while other symptoms, including hot flushes, irritability, loss of libido, inability to concentrate and disturbing lapses of memory were reduced by up to 33% and reduction in stomach problems such as bloating and gas of 100%.  We considered that the references to the trial, a self-assessment study, implied that there was adequate objective evidence that LadyCare was effective at relieving menopausal symptoms.  Also, we noted that the bottom half of the pages claimed that LadyCare "may help relieve symptoms" and in one ad stated "Do you recognise yourself?  Grumpy, Sleepy, Itchy, Sweaty, Bloated, Moody and Forgetful.  Its time for a change."  We considered that the bottom half of the pages also implied LadyCare would help relieve symptoms of the menopause.  We understood that the advertiser had been the subject of a referral to the OFT because the advertiser had refused to stop claiming health benefits for its products.  Also, we noted that the Compliance team had issued an alert to all publishers and urged them to seek CAP Copy Advice before publishing advertisements for the LadyCare because of the advertisers disregard of the requirement to hold, before publication, robust documentary evidence to support objective claims that state or imply that the LadyCare product could relieve the symptoms of menopause.

We considered that the pages misleadingly implied adequate objective evidence existed to substantiate the claims LadyCare can contribute to relieving the symptoms of menopause.  Because we had not seen evidence that demonstrated the LadyCares efficacy we considered the pages were misleading.

On this point, the articles and ads breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 50.1 and 50.3 (Health & beauty products and therapies).

Action

We told the Daily Express and LadyCare Lifetime Ltd to ensure that their advertorials were identified as advertisement features in future.  We told LadyCare Lifetime Ltd to remove the claims and advised them to seek CAP Copy Advice before advertising again.

Adjudication of the ASA Council (Non-broadcast)