Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A press ad, seen in the Midweek Herald, was headed "100% SUCCESS rate with eczema, psoriasis, sciatica, migraine, neuralgia, anxiety, depression, insomnia, panic attack, hypertension, asthma, irritable bowel syndrome, hay fever, frozen shoulder, arthritis, giving up smoking, menopausal syndrome, impotence". Further text stated "Having worked as a hospital doctor in a hospital in China, Singapore and the UK for so long, with many successful cases, Dr Zhou is not satisfied with her past achievements anymore. Now she is challenging some undiagnosed diseases and Necrosis nerve system and body tingling, any skin conditions like Psoriasis and numbness etc. There are many patients who have had such symptoms every year, all have been cured with acupuncture, tuina and herbal medicine...".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1."100% SUCCESS rate" for the conditions listed; and
2. "Having worked as a hospital doctor in ... the UK for so long".
.
Response
1. Laura Healthcare Ltd (Laura Healthcare) said the claim "100% Success rate" was not misleading as it was true that Chinese medicine had been in existence for thousands of years and was always 100% effective. They said that did not mean that the cure rate was 100% successful, because the condition being treated might return in the future.
2. Laura Healthcare said Dr Zhou was a qualified doctor who had studied medicine at university in China, taken the National Medical Licensing Examination, and then practised in China. They provided copies of Dr Zhou's Bachelors degree in Medical Care at the China Medical University, awarded in 1993, and a "Qualification Certificate of professional post holding" which they said was the license she required to practise at a hospital. Laura Healthcare said they had checked her qualifications before employing her to practise traditional Chinese medicine. They said when Dr Zhou had drafted the ad, she was merely trying to indicate that she had lengthy experience and could help people with the conditions listed. They explained that Dr Zhou was currently abroad on holiday and that they did not hold any further documentation regarding her positions in UK hospitals. They said because Dr Zhou was abroad and due to a lack of other suitable staff they had decided to close the company.
Assessment
1. Upheld
The ASA noted that the ad stated "100% SUCCESS rate", and then listed a number of medical conditions. We considered that most consumers would understand the claims to mean that Dr Zhou had a 100% success rate when treating those conditions. In the absence of any evidence to support those claims we concluded that they were misleading and therefore in breach of the Code.
On that 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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
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.
12.6
12.6
Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
and
12.8
12.8
Marketers must hold proof before claiming or implying that a minor addiction or a bad habit can be treated without effort from those suffering.
(Medicines, medical devices, health-related products and beauty products).
2. Upheld
The ASA understood that Laura Healthcare had claimed that they had decided to close, but noted that they had not provided any evidence to confirm that they were closing. We acknowledged that Dr Zhou had studied and practised general medicine in China. We noted, however, that text in the ad stated "Having worked as a hospital doctor in a hospital in China, Singapore and the UK for so long...", and considered that most consumers would therefore expect that Dr Zhou was, or had been, a registered medical doctor and practised in the UK. Because we had not seen evidence that Dr Zhou had practised medicine in the UK, and noted that she was not included on the General Medical Council's List of Registered Medical Practitioners, we concluded that the claim was misleading and in breach of the Code.
On that 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
Action
The ad must not appear again in its current form. We told Laura Healthcare Ltd to ensure they did not claim that Dr Zhou could treat particular medical conditions unless they held robust evidence to substantiate those claims, and not to imply that Dr Zhou had practised general medicine in the UK if that was not the case.
