Background
Summary of Council decision:
Seven issues were investigated, of which five were Upheld and two Not upheld.
Ad description
The website www.halcyonbracelets.com and their page on a social media site for copper bracelets.
The website home page included various claims related to the efficacy of Halcyon copper bracelets for restless leg syndrome (RLS), for example, "Do you have Restless legs?... Itchy Legs?... A crawling sensation inside your legs? … and the overwhelming urge to keep moving your legs in order to get some relief?... I feel compelled to spread the word about Halcyon Bracelets purely because they have worked for me so dramatically, and over such a long period of time … I am pleased to say that I have had many testimonials from happy customers … I have been a sufferer of Restless Legs at night for over 35 years … I discovered that wearing a specific type of copper bracelet on both wrists at specific times gave me immediate relief … Before I used the bracelets i [sic] would have constant disturbed nights which in turn would have a big impact on the next day … I have modified the bracelets, now called Halcyon Bracelets. The bracelets contain 99.9% pure copper … I have tried other types of copper bracelets over the years … but no others have ever suited me as well as the ones I first came across … they are the only ones I feel I can recommend … I just want to get the message out there that there is an alternative to medication that has worked for me for over 30 years, and is now proving to work for other sufferers too".
At the bottom of the home page, text stated "…if after applying the Halcyon Bracelets over a period of 4 weeks in the way that I recommend, you do not enjoy any of the relief that I have experienced, please return them immediately … together with the packaging and invoice and we will refund the purchase price".
The website also included a link "FITTING YOUR BRACELETS" which included the text "Please note that if you are taking medication for Restless Legs Syndrome, you should consult your doctor before stopping. Please note that if you do come off your medication, it is usually done gradually and you may not possibly feel the full benefit of the bracelets whilst doing so as your body adjusts. However, once the medication is out of your system (approx 2 weeks after stopping) the bracelets will have the chance to work on their own merit". The FAQ page also stated "You should replace your bracelets about every two year".
The website also included a page of testimonials.
Issue
The complainant challenged whether:
1. the efficacy claims for Halcyon copper bracelets for the relief of RLS were misleading and could be substantiated;
2. the claims related to the copper content of the bracelet and that they were required to be renewed every two years were misleading and could be substantiated;
3. the reference to other bracelets, which the complainant believed was a superiority claim, was misleading and could be substantiated;
4. the ad was irresponsible because the complainant believed it encouraged consumers to switch from prescribed medication to using the bracelets;
5. the claims in the testimonials were misleading and could be substantiated;
6. the testimonials were genuine; and
7. the money-back guarantee was genuine.
Response
1. & 5. Halcyon Bracelets said they had provided help for many sufferers of (RLS). They said they had not claimed that their copper bracelets would work for everyone and that they held evidence from personal experience and from customers that the products had an effect on RLS.
2. Halcyon Bracelets said their supplier had advised them that it was necessary to renew the bracelets every 2 years because the copper oxidised and became less effective.
3. Halcyon Bracelets said that because other copper bracelets contained nickel, they did not consider that they could be recommended for sufferers of RLS. They said they could not establish the content of other bracelets because that information was often omitted on product packaging.
4. Halcyon Bracelets said the ad should be read in its full context, that is, the text "there is an alternative to medication" is followed by wording that stated "that has worked for me". They said they had not said the bracelets would work for other people and that it was each consumer's decision whether they choose to try an alternative to medication.
6. Halcyon Bracelets said all testimonials were genuine and came from real customers that could be confirmed by emails or postings on a social media website. They provided several emails and social media postings which they said confirmed that the testimonials were genuine.
7. Halcyon Bracelets said that their money-back guarantee had always been provided and they had proof of payment refunds. They provided a list of refunds which they said confirmed that the money-back guarantee was genuine.
Assessment
1. & 5. Upheld
The ASA considered that wording such as "Do you have Restless legs? ... Itchy Legs? ... A crawling sensation inside your legs … I feel compelled to spread the word about Halcyon Bracelets purely because they have worked for me" and "… wearing a specific type of copper bracelet … gave me immediate relief" were likely to be understood by consumers as efficacy claims. That is, the product could alleviate the symptoms of RLS, therefore the claims must be supported by evidence. In addition, the testimonials also included claims that the bracelets could alleviate the symptoms of RLS. However, we did not consider that personal or customer endorsement alone constituted adequate substantiation. Halcyon Bracelets did not provide evidence in support of their claims. We therefore concluded that the claims were misleading and had not been substantiated.
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),
3.47
3.47
Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer.
(Endorsements and testimonials),
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
and
12.6
12.6
Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
(Medicines, medical devices, health-related products and beauty products).
2. Upheld
We understood that the Halcyon Bracelets' supplier had advised that their product should be renewed periodically because the copper oxidises. However, we were not presented with independent evidence to support that assertion. We therefore concluded the ad was misleading.
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) and 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. Upheld
We considered that the claim "I have tried other types of copper bracelets over the years … but no others have ever suited me as well as the ones I first came across … they are the only ones I feel I can recommend" was likely to be understood as a comparison with other copper bracelets and that consumers were likely to understand that Halcyon Bracelets were superior to other similar products on the market for the relief of the symptoms of RLS. We also considered that the ad implied that Halcyon Bracelets had an effect on RLS over and above other copper bracelets. As highlighted in point 1, such claims should be supported with adequate substantiation. Because we had not seen evidence that the product was superior in relation to its effect on RLS we concluded the ad was misleading and had not been substantiated.
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),
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
and
12.6
12.6
Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
(Medicines, medical devices, health-related products and beauty products).
4. Upheld
We understood that in some instances, RLS could be treated with prescription-only medicines and therefore treatment would be conducted under the supervision of a suitably qualified health professional. We were concerned that, although the claim "there is an alternative to medication … that has worked for me" was positioned as one person's experience, it was likely to give the impression that Halcyon Bracelets' products could be a viable alternative to medication and could encourage consumers to discontinue prescribed treatment. We noted that a link on the website directed consumers to a page that stated "… if you are taking medication … you should consult your doctor before stopping". We did not consider that such a disclaimer was sufficient to ensure individuals were not discouraged from continuing appropriate treatment. We therefore concluded the ad breached the Code.
On this point, the ad breached CAP Code (Edition 12) rule
12.2
12.2
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered (see rule
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
).
Health professionals will be deemed suitably qualified only if they can provide suitable credentials, for example, evidence of: relevant professional expertise or qualifications; systems for regular review of members' skills and competencies and suitable professional indemnity insurance covering all services provided; accreditation by a professional or regulatory body that has systems for dealing with complaints and taking disciplinary action and has registration based on minimum standards for training and qualifications.
(Medicines, medical devices, health-related products and beauty products).
6. Not upheld
We considered the selection of emails and social media postings provided by Halcyon Bracelets and noted that the majority of them included permission from customers to use their testimonial on the advertiser's website. The testimonials were also accompanied with the customer's order history and address. Although we had not seen independent evidence to support the advertised efficacy claims, we nonetheless concluded that the evidence was sufficient to demonstrate that those testimonials were genuine.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. and 3.48 3.48 Marketing communications must not feature a testimonial without permission; exceptions are normally made for accurate statements taken from a published source, quotations from a publication or references to a test, trial, professional endorsement, research facility or professional journal, which may be acceptable without express permission. (Endorsements and testimonials), but did not find it in breach.
7. Not upheld
We considered the list of refunds provided by Halcyon Bracelets that showed refunds of various amounts and concluded that it was sufficient evidence to support their money-back guarantee claim.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.54 3.54 Marketing communications must make clear each significant limitation to an advertised guarantee (of the type that has implications for a consumer's rights). Marketers must supply the full terms before the consumer is committed to taking up the guarantee. (Guarantees and after-sales service), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Halcyon Bracelets to avoid making efficacy claims for their product in the absence of adequate substantiation and to ensure they did not discourage prescribed treatment for RLS.
CAP Code (Edition 12)
12.1 12.2 12.6 3.1 3.38 3.45 3.47 3.48 3.54 3.7
