A website, www.thechineseclinic.co.uk, seen in March 2015, stated "We offer a money back guarantee to anyone who really wants to improve and maintain their health to achieve their best. If you promise to respect your limitation and needs ... Read Guarantee. ... Our money back guarantee does not affect your statutory rights". Those statements linked to a page headed "Money Back Guarantee", which explained how the body healed itself if enough energy was restored and stated "if you follow advice and attend treatments as recommended, provided that you have not left it too late. How long it takes to get well depends on the nature and severity of the condition, and most crucially on how long it takes you to switch off and start enjoying your life".
The complainant, who stated that they had been refused a refund under the guarantee, challenged whether the ad was misleading.
Chinese Clinics (Balham) Ltd t/a The Chinese Clinic stated that the issue constituted a legal dispute and was not an advertising matter. They stated that the complainant could have made a small claims court claim for refund and compensation under the Supply of Goods and Services Act 1982 or bring the matter to Trading Standards, health protection authorities, the police, her credit card company, or their professional regulatory body, the Association of Traditional Chinese Medicine and Acupuncture. They stated that whether the complainant was entitled to a refund was a matter for the courts to determine and that they were of the view that the claim was groundless. They said that in order to make a successful claim under their guarantee, the complainant must first produce evidence to show that their health conditions or sleep, energy and stress had not improved, and that they had complied with all their terms and conditions. The Chinese Clinic said this was the normal procedure for making a claim, which consumers would be likely to be familiar with. They said their guarantee was enforceable in law.
The ad stated "We offer a money back guarantee" and the ASA considered that consumers would understand that, under the stated conditions of the guarantee, they would receive a refund if they did not improve as a result of the treatment offered as long as they adhered to the advice given by the advertiser. We understood that The Chinese Clinic had not refunded the complainant and noted that they had not provided any explanation as to why they were ineligible for the refund under the terms of the guarantee beyond that they did not believe their claim to be valid. We also noted that no evidence had been provided that other customers had successfully claimed under the guarantee or that others attempting to claim had genuinely been ineligible. We acknowledged that the ad stated "Our money back guarantee does not affect your statutory rights" but considered that consumers would understand the guarantee to be offered in addition to their legal rights and demonstrably available without such recourse, rather than a refund obtained by pursuing legal action against the advertiser. Because we had not seen evidence that the money-back guarantee was generally fulfilled by The Chinese Clinic we concluded that the ad was misleading.
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) and 3.53 and 3.55 (Guarantees and after-sales service)
The ad must not appear again in its current form. We told Chinese Clinics (Balham) Ltd not to repeat the claim unless they could demonstrate that eligible claims under the guarantee were honoured.