Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A leaflet for Aquil Ltd, a shoe insole company, inserted in to a daily newspaper, was seen on 6 May 2017. It included text which stated “Your feet can now heal your body … Helps with weight loss … Improves your concentration … Reduces your blood pressure ... Strengthen the heart and immune system”. It also included multiple testimonials which described how the insoles helped with conditions such as hypertension, diabetes, high cholesterol, arthritis and rheumatism. Further text stated “… we’ve identified over 100 mild and serious conditions that can either be prevented or treated by wearing the insoles. For example, reflexology is widely used to successfully prevent and treat illnesses, such as high blood pressure, diabetes, arthritis and poor circulation. It is also used to help relieve pain and discomfort post-surgery and severe therapy treatments such as chemotherapy”.
The complainant challenged whether:
1. the efficacy claims for the product in treating the conditions listed were misleading and could be substantiated; and
2. the testimonials were genuine.
Aquil Ltd acknowledged the complaint. They stated that the product was not a registered medical device. Further they said that they were unable to provide clinical trials to substantiate the claims made in the ad and that they were relying on customer testimonials to support their product. They also informed us that they were working with a third party to ensure that their future ads complied with the CAP Code.
The ASA considered that consumers would interpret the claims that appeared in the ad such as “your feet can now heal your body” and “improves your concentration” to mean that the insoles could be used to improve their overall health. We noted that the advertiser provided no evidence to substantiate those efficacy claims and therefore concluded that the ad was misleading.
Further, as Aquil Ltd had not presented evidence to demonstrate that the insoles were CE-marked medical devices or that they had been subjected to rigorous trials on people to establish that they were an effective weight-reduction method. We therefore concluded that the medical and weight-loss claims in the ad were in breach of the CAP Code.
On that point, 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.
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. (Medical, medical devices, health-related products and beauty products) and 13.1 13.1 A weight-reduction regime in which the intake of energy is lower than its output is the most common self-treatment for achieving weight reduction. Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation. (Weight control and slimming).
The ASA noted the Code stated that documentary evidence must be held to show all testimonials were genuine, unless they were obviously fictitious. As the advertiser provided us with no evidence that this was the case, we concluded that the ad breached 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) and 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. (Endorsements and testimonials).
The ad must not appear again in its current form. We told Aquil Ltd not to make medical claims about devices that were not licensed as such and to not make weight-loss, health claims and other efficacy claims without holding robust evidence. Further, we told them to ensure they held documentary evidence that testimonials were genuine.