Ad description
The website www.bmihealthcare.co.uk, for a private healthcare provider, included the repeated claim, which also appeared with the company logo, "BMI Healthcare - THE CONSULTANTS' CHOICE".
Issue
The complainant challenged whether the ad misleading implied that consultants in the medical profession were more likely to recommend BMI Healthcare than other such providers.
Response
BMI Healthcare Ltd (BMI) said extensive research was conducted prior to adopting the tagline "THE CONSULTANTS' CHOICE" in 2008. They said it did not suggest that consultants preferred the BMI over any other healthcare provider, including the NHS, and did not state or indicate that consultants would recommend BMI to patients over other healthcare providers or that they were better than other healthcare providers. They said the claim was justified by the fact that more consultants chose to work across the BMI group. Approximately 7,000 consultants, all independent contractors who were under no obligation, worked at BMI hospitals, which they said was materially more than any other healthcare provider in the UK. BMI said it was a consultant's individual choice to do so and the numbers practising with BMI suggested that BMI was indeed their choice. They said the research demonstrated the reasons why consultants chose to practise at particular hospitals as well as their views on the performance of BMI and other healthcare providers.
BMI said the research included stakeholder interviews, hospital visits and desktop research as well as a consultant survey carried out by a third party. They said the survey showed that consultants that used both BMI and other private independent hospitals ranked BMI hospitals higher on the factors that were viewed as most important to consultants when choosing an independent healthcare provider. Those factors included quality of nursing and theatre staff, perceived hospital cleanliness and hospital infection rates. They submitted a table of the scores BMI and a competitor had achieved on the four aspects seen as most important in the survey as well as a summary of the research. They said the outcome of their research, in which they were rated higher in 10 of 13 areas, clearly showed that it was the consultants' choice to work in BMI hospitals compared to all healthcare providers at the time, including NHS private patient units. They said the strap line, which was a comment made by BMI and not an individual or group of consultants, was therefore not misleading but a reflection of research they had undertaken. They said they had not been made aware of any significant concerns regarding the claim in the past.
Assessment
Upheld
The ASA noted "THE CONSULTANTS' CHOICE" was intended to mean that more consultants chose to work for BMI than other private healthcare providers. We considered, however, the claim, which was general and not qualified, was likely to be interpreted as suggesting consultants in the medical profession were more likely to recommend BMI to patients than they were other such providers.
We noted that BMI said their research, including the results of the survey of consultants submitted, showed that it was the consultants' choice to work in BMI hospitals, rather than to recommend their services to patients. We therefore considered it was not directly relevant to the claim as it was likely to be interpreted. Nevertheless, we noted that while BMI ranked more highly than the competitors on 10 of 13 elements included in their overall comparison, the differences in scores, which ranged from 0.18 to 0.88 points for the top four elements considered to be most important in choosing where to place their private practice by the consultants surveyed and a maximum of 1.35 for the other elements, which totalled 17, were small. We were also concerned that the results of the survey, which 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. respondents completed in 2007, were used to support a claim that was likely to be interpreted as currently relating to consultants in general.
For the reasons given, we considered the evidence submitted was insufficient to substantiate the claim. We therefore concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors).
Action
The ad must not appear again in its current form. We told BMI to ensure they did not imply they had been more widely recommended than was the case in future. We also told them to ensure they held adequate evidence to support their future objective claims.
