Ad description
A national press ad, for a hearing aid, was headlined "World's latest 'Bionic' aid cuts cost of digital hearing aids for Over 50's [sic]". Further text included "Now there is an amazing hearing aid that ... gives you the most incredibly improved hearing ... it's [sic] revolutionary design actually mimics the natural sound selection process of the human ear more faithfully than ever before ... AUTOMATIC HEARING Relax. Walk into any situation with complete confidence. Be it one-to-one conversations, walking in a noisy street, around the table or listening to music in a concert hall - you will now be able to enjoy all these events much, much more. Because you can hear much, much more. Using the latest software, called Sound Recover, only Exelia Art is able to so successfully enhance the sounds you want to hear and suppress the ones you don't. So sounds like rustling paper and clinking dishes no longer intrude. It does this via 20 channels and six specially designed programmes. There is even a programme for the telephone so you can enjoy feedback free conversations. PURE NATURAL CLARITY The Exelia Art ingenious multi-directional microphone system now features Real Ear sound. This stimulates the performance characteristics of the outer ear so sounds are not only more real and natural but you can place exactly where they come from. Incredibly, it is able to suppress as many as twenty different sources of noise at the same time. Which means you will be able to understand speech in background noise like never before. Phonak have also designed the Exelia Art so you'll experience virtually:- No Echo No Feedback No Whistling No Wind noise". Small print, which appeared on a coupon headed "Please send me [sic] free colour brochure on the Exelia Art without obligation ...", stated "Certain hearing aids may not help all types of hearing loss ...".
Issue
The complainant challenged whether:
1. the efficacy claims for the product, under the headings "AUTOMATIC HEARING" and "PURE NATURAL CLARITY", including that users would experience "... virtually:- No Echo No Feedback No Whistling No Wind noise", were misleading and could be substantiated; and
2. the ad misleadingly implied the hearing aid would be effective for all types of hearing loss.
Response
1. Invisible Hearing (IH) said the Exelia Art was made by Phonak, one of the world's best hearing aid manufacturers, who were renowned for their innovative technology. They said the claim "AUTOMATIC HEARING" referred to Exelia Art's adaptive technology. The hearing aid had the ability, via a feature called 'soundrecover', to identify different listening environments to enhance the sounds the listener wanted to hear and to suppress background noise, which brought previously inaudible high frequency sounds within the listener's spectrum of hearing. They provided leaflets related to the 'soundrecover' feature. IH said there was also considerable scientific evidence but it would only be understood by an industry expert.
They said the two main features that contributed to "NATURAL CLARITY" were 'real ear sound' and 'acoustic optimised venting'. 'Real ear sound' meant that natural localisation cues, which could be lost when a hearing aid was placed outside the pinna (outer ear), were restored by the device simulating the performance characteristics of the pinna. It allowed listeners the ability to experience natural sound perception. 'Acoustic optimised venting' meant that occlusion (the effect of experiencing the hollow or booming effect of one's own voice) could be reduced to the lowest level possible, which was an exclusive, clinically proven feature of Phonak and was available in a range of custom products or styles.
IH said the claim "virtually:- No Echo No Feedback No Whistling No Wind noise" was clearly preceded by "virtually", which qualified the claim. In addition, the features of 'windblock management' and 'whistleblock technology' suppressed wind noise to allow users to enjoy the outdoors and gave increased audibility and a sound quality that was free from annoying feedback. They also submitted evidence related to other features of the product.
2. IH pointed out that the ad stated "Certain hearing aids may not help all types of hearing loss ...". They said information was also readily accessible that explained that the Exelia Art fitting range covered mild to profound hearing loss, regardless of audiometric configurations. They submitted the relevant literature.
Assessment
1. Upheld
The ASA noted the evidence submitted by IH, which included promotional material that described the technological features of the product and their benefits for users. We acknowledged some of the substantiation referred to studies that had been carried out on hearing instruments with certain features to which the ad referred, for example 'soundrecover', but noted we had not seen the studies themselves and, from the information we had seen, that they did not appear to be double-blinded, did not necessarily involve the Exelia Art, they generally involved a very small number of subjects and/or involved some subjective self-reporting of results. We also noted the subjects in some of the studies were not aged over 50 and in one instance were children. We therefore considered the references to those studies were not directly relevant to the claims in the ad, which was headlined "World's latest 'Bionic' aid cuts cost of digital hearing aids for Over 50's [sic]". We noted the literature also referred to some performance tests on particular elements of the product that did not involve human subjects but that there was no information on how those elements combined to provide the overall performance described in the ad. We considered the evidence was not adequate to support the efficacy claims in the ad and therefore concluded that the claims were 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),
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
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.
(Medicines, medical devices, health-related products and beauty products).
2. Upheld
We noted the ad included the small print "Certain hearing aids may not help all types of hearing loss ...". We considered the overall impression of the ad was that the hearing aid would work for all types of hearing loss but noted we had not seen evidence of that. We considered the small print was not sufficient to remove that impression and therefore concluded that the ad misleadingly implied the hearing aid would be effective for all types of hearing loss.
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),
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) and
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 IH to ensure they held adequate substantiation before making efficacy claims in future. We also told them to ensure future claims were clearly qualified.
