Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A direct mailing for FoodScan food intolerance testing. It included several customer testimonials, including "Hyperactivity Five year old Michael used to be so hyperactive that he could only go to school on a part-time basis … After taking the FoodScan 113 Test Michael discovered he was intolerant to a range of foods …"; "Tiredness Veronica suffered from food related illness for two years prior to taking the test and often went weeks without eating … After taking the YorkTest Food Intolerance Test she learned that she was intolerant to dairy and wheat and started eliminating these foods from her diet. Within three weeks she was sleeping better and feeling well. She changed her diet completely and even that of her husband who is also benefitting from the treatment"; "Weight Problems Fiona suffered from a multiple [sic] of problems, which included weight gain, decreased energy levels and a lowered mood. Fiona took the FoodScan 113 Food Intolerance Test and with the help from one of our nutritionists, she was on the road to recovery … Fiona also suffers from arthritis in her knee, which prevented her from sleeping at night and the FoodScan 113 Test has now given her a good night's sleep …"; "Itchy Skin Sarah was only 4 years but from the age of 2 months to 11 months she was having three bandage changes a day and a tub of steroid cream applied … Within three weeks of the test being taken she was sleeping better and the eczema had gone. She changed her diet and began reading labelled foods more carefully including salads, fish and meat".
The complainant challenged whether:
1. the testimonials were genuine, in particular because those related to hyperactivity and itchy skin implied children aged four and five had understood their own test results, read food labels or controlled their own diet as a result of the testing; and
2. the claims that the food intolerance tests could be used to treat weight problems, arthritis and tiredness, including in those who had not taken the test, were misleading and could be substantiated.
1. & 2. YorkTest Laboratories Ltd (YorkTest) said the testimonials were based on genuine feedback from their customers. Some of those testimonials were, however, from many years ago and they did not necessarily still hold documentary evidence to support all of them. They said they had therefore withdrawn the ad and would not in future use testimonials without holding suitable evidence. YorkTest said they would also review the wording of any testimonials to ensure they did not include any claims that could be misleading.
1. & 2. Upheld
The ASA noted YorkTest did not submit evidence to demonstrate that the testimonials in the ad were genuine or to substantiate the efficacy claims made in the testimonials. In the absence of such evidence, we considered the testimonials had not been demonstrated to be genuine and that the efficacy claims were misleading. We therefore concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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.
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.
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) and
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. (Medicines, medical devices, health-related products and beauty products).
The ad must not appear again in its current form. We told YorkTest to ensure they were in a position to demonstrate that future testimonials were genuine. We also told them to ensure they held adequate evidence to support future efficacy claims.