Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A website, www.patientchoicefoundation.org, for a prescription home delivery service specialising in colostomy, ileostomy and urostomy products, included various web pages with information about the company and its service.
The home page stated "Welcome to the only not-for-profit prescription home delivery service. We are completely independent of any medical manufacturer so will not encourage patients to use more prescription items to increase our profits and are committed to reducing waste, improving patient care, and saving the NHS money".
A web page headed "About Us" stated "Patient Choice is an award winning social enterprise, set up by the founder of national stoma support charity Ostomy Lifestyle, to provide the first truly independent and transparent home delivery service for medical appliances such as ostomy bags and catheters. Having worked in the charity supporting patients for several years, Neil saw that in most cases patients were not given the choice that they were entitled to, or were being encouraged to use certain products based on corporate needs. 'All healthcare companies make money out of people's illnesses; I think it's time that some of that benefit went back to supporting patients'. By being a social enterprise, funded by UnLtd and the Big Lottery Fund, patients can be assured that their needs come first, before paying shareholders".
A web page headed "Meet The Team" stated "Neil is the founder of Patient Choice ... Having seen the need for a truly impartial and non-commercial prescription home delivery service for medical appliances he gained investment from the Big Lottery Fund and UnLtd to set up the service".
A web page headed "Prescription Delivery" stated "... you can be assured that we are: Impartial - Patient Choice is completely independent of any manufacturer, and has no commercial interest in recommending any particular product over another".
A web page headed "Sign Up" stated "Make the ethical choice for your appliance home delivery needs ...".
Issue
The British Healthcare Trades Association (BHTA) challenged whether the ad:
1. denigrated medical appliance manufacturers, because it implied that they encouraged consumers to use certain products, and order more products than they needed, in order to increase their profits, and that they were therefore unethical; and
2. misleadingly implied that the advertiser was "truly impartial" and "completely independent" from any medical manufacturers.
Response
1. Patient Choice Ltd (Patient Choice) said that other prescription home delivery services (Dispensing Appliance Contractors, or DACs) which provided stoma care products were traditional commercial businesses, and that most were owned by the manufacturers of the products they supplied (known as 'vertically integrated' DACs). They said the purpose of such traditional businesses was to provide a product or service for the financial benefit of their shareholders. By contrast, Patient Choice was a social enterprise, which the Government defined as "businesses with primarily social objectives whose surpluses are principally reinvested for that purpose in the business or in the community, rather than being driven by the need to maximise profit for shareholders and owners". Patient Choice said the claims on their website focused on the social and charitable outcomes of their business.
Patient Choice said there were severe problems within the industry of stoma and urology appliances which related to partiality and the extraordinary profits available through dispensing and manufacturing prescription appliances. They provided a copy of an article published in the British Medical Journal (BMJ), written by their Managing Director, which they said provided more information about the way the market worked, and the prevalence of vertically integrated DACs in that market. They said that created a clear conflict of interest issue for vertically integrated DACs.
Patient Choice briefly described practices which they asserted were carried out by vertically integrated DACs, and provided documents which they believed supported their assertions. They asked that the details be kept confidential.
2. Patient Choice understood that BHTA had challenged the claims in the context of their relationship with a company called Ward Surgical & Supplies Ltd (WSS), and their continuing relationship with that company's owner.
Patient Choice explained that in order to operate as a DAC, a company must be licensed by the local health authority. Licenses could only be obtained by acquiring an existing licence from an existing contractor. Patient Choice said it was common knowledge that their licence had been acquired from WSS. They said that WSS's primary business, trading under the name Devine Supplies, was the supply of orthotic garments to hospitals, and the supply of haberdashery for support garments and corsetry to private businesses and craftspeople. However, WSS also manufactured made-to-order rubber ostomy bags and urinals which were available on prescription. Those products had been superseded by modern disposable products, and so only a small number of patients still requested them. Patient Choice said WSS had sold their DAC licence to them because they would continue to supply those products to patients. Patient Choice believed that other potential licence purchasers would not have continued to supply those products because they were no longer commercially viable. They said that WSS had retained the part of the business which traded as Devine Supplies.
Patient Choice further said that they had engaged WSS's owner to help administer the logistics of their home delivery service, to advise on dealing with the NHS and prescription services, and to provide the licensed premises whilst they awaited the authorisation of the licence transfer to Patient Choice and relocation to new licensed premises. They said those business relationships had ended by April 2013, but at their invitation WSS now conducted the remaining aspects of its business from Patient Choice's new premises.
Assessment
1. Upheld
The ASA understood that Patient Choice was a social enterprise, and therefore acknowledged that, in contrast to DACs, which operated on a for-profit basis, they operated on a not-for-profit basis. Nonetheless, we considered that claims in the ad, particularly on the “About Us” web page, went beyond factual observation about the commercial status of other DACs by implying that the for-profit nature of these businesses meant they engaged in unethical practices.
The CAP Code required that such stated and implied claims must be supported by evidence. We considered Patient Choice must therefore provide evidence which demonstrated that all for-profit DACs which supplied stoma care products engaged in the practices referred to in the advertising claims. We noted the BMJ article provided further commentary on Patient Choice's view of the industry, but it did not present evidence in support of its claims. The additional documentation provided was limited and we considered it did not adequately support the advertising claims.
We concluded the advertising claims were misleading and denigrated other DACs which supplied stoma care products.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other Comparisons) and 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and Denigration).
2. Not upheld
Whilst we acknowledged that there was a relationship between Patient Choice and WSS, we considered that, in the context of the website as a whole, and in particular the claim "We can provide the full range of appliances on prescription, regardless of manufacturer" on the "Prescription Delivery" web page, visitors to the website would understand the claims "truly impartial" and "completely independent" to mean that Patient Choice supplied products from a range of manufacturers and did not have any arrangements with specific manufacturers to particularly promote or recommend their products. Because we understood that was the case, we concluded the claims were unlikely to mislead.
On this point, we investigated the ad under CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Patient Choice not to make claims for which they did not hold adequate substantiation and to ensure their advertising claims did not denigrate other DACs which supplied stoma care products.
