Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A national press ad for ClearTouch, a device advertised as a treatment for nail fungus, seen on 8 April 2017, headed “Don’t let NAIL FUNGUS Stop You In Your Tracks!”, included claims that the device was effective in treating fungal nail infections, including “Helps treat the fungus responsible for nail infection in a few treatments” and “… the simple, effective solution for fungal nail infections”. The ad featured two testimonials which stated “‘I tried everything else including therapy from a dermatologist. It takes a while but ClearTouch works! …’ Luclejoon, Amazon 5-star review” and “’Got ClearTouch after trying ten other products that did not work. It cleared the fungus and is far cheaper than doctors and prescription drugs …’ TZ, Amazon 5-star review”.
The ASA received two complaints.
One complainant challenged whether:
1. the testimonials were genuine; and
2. the claim that ClearTouch was “far cheaper than doctors and prescription drugs” was misleading and could be substantiated.
3. Both complainants challenged whether the claims that the product was an effective treatment for fungal nail infections were misleading and could substantiated.
ICTV Brands Ltd stated that the testimonials used in their advertising were genuine, unsolicited reviews taken directly from satisfied customers who had purchased the product through Amazon. The reviews were in the public domain and available to review on Amazon, therefore they believed that they were acceptable to use in their advertising.
They stated that although the reviews were for their product, because they were submitted directly online through the Amazon platform they did not have access to those customers’ email addresses and only had online records.
They acknowledged that consumers would not need to pay for consultations through the NHS, but said that most treatments for foot fungal infections could take up to 12 months to treat. Combinations of creams and tablets could cost £8.95 per prescription for a month’s course and when multiplied over the year, the cost of ClearTouch would be a cheaper option for more consumers.
They provided an excerpt from the website of a competitor which set out that the suggested use for their liquid fungal nail treatment was one application a day for four weeks and then once a week for up to nine months. ICTV Brands stated that the cost for their competitor’s treatment was £19.99 for 3.8 ml, which was approximately a month’s supply.
They provided links to a website that stated UK prescription charges as well as a laser light treatment of foot fungus which was priced at £595.
They provided a copy of documents relating to the EC medical device certification process and a CE certificate to cover “Dermatological Treatment Systems and self-treatment for non-Invasive body acne treatment” as sold in the UK by ICTV. The certificate stated that it covered the “no!no! Skin” product. They explained that the advertised device was marketed as ClearTouch but was also marketed as “no!no! Skin”, which was used to treat acne. They explained that the device worked because it produced a combination of heat and light energy to treat dermatological conditions, as noted in the CE certificate. They stated that toenail fungus was a dermatological condition and the addition of a clear plastic tube to the end of the “no!no! Skin” device allowed the user to easily concentrate the light and heat energy on to the toenail, without undue strain of a person’s back, while resting the device on the nail.
They provided a copy of an in vitro scientific study which they stated proved that the light and heat energy from the “no!no! Skin” device killed Trichophyton rubrum, which they stated was the primary cause of the dermatological condition commonly known as toenail fungus. The study, titled “The Effectiveness of Radiancy’s Light & Heat Energy (LHE) Device on the Viability of the Dermatophyte Fungus Trichophyton Rubrum”, concluded that the experiments conducted showed that light and heat energy delivered by the Radiancy device decreased Trichophyton rubrum viability.
The ASA considered that consumers would expect that the testimonials selected by ICTV Brands were left by genuine customers who had purchased the product.
The CAP Code stated that documentary evidence must be held to show that all testimonials were genuine. However, ICTV Brands did not provide us with any evidence to demonstrate that the testimonials were genuine. We therefore 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), 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 3.45 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).
We considered that consumers would understand the claim “far cheaper than doctors or prescription drugs” to mean that by using ClearTouch to treat their infection it would be more cost effective than being treated by a doctor and cheaper than using prescription medicines to treat fungal nail infection.
We noted that under the NHS doctor’s consultation, costs would not be applicable, and that ICTV Brands did not set out a specific treatment course available on prescription in order to substantiate the full cost of a comparable treatment. We also noted that prescription charges were not applicable in Wales and Scotland. We acknowledged that ICTV Brands referred to a nail fungus treatment from a competitor, priced at £19.99 for what they stated to be a month’s worth of treatment, with the duration of application lasting around nine or ten months and the frequency of the application reducing from once a day to once a week after a month. We understood, however, that would not be likely to exceed three bottles of the competitor treatment and would therefore be cheaper than the ClearTouch. We also noted the laser light treatment cost referred to was only one example of fungal nail treatment which cost more than the ClearTouch. We therefore considered that the examples given were not sufficient to substantiate the claim.
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) and 3.33 (Comparisons with identifiable competitors).
We considered that consumers would interpret the efficacy claims for the product to mean that ClearTouch was effective in treating all forms of fungal nail infections.
We acknowledged the in vitro scientific study provided by the advertiser which demonstrated that light and heat energy from the device was successful in eliminating a form of fungal toenail infection known as Trichophyton rubrum. We noted, however, that the study measured the effects of the treatment in lab conditions in short bursts and was not compared with the suggested use of the product (i.e. 20 seconds, twice a day) over a prolonged period of time. We also noted that the study did not look at other forms of fungal nail infections; therefore it did not sufficiently substantiate the claims that it could effectively treat fungal nail infections.
Notwithstanding that, we noted that the CE Certification provided by the advertiser covered the “no!no! Skin” device, which was certified under the category of “Dermatological treatment systems and self-treatment for non-invasive body acne”. We acknowledged that the ClearTouch was a modified version of the “no!no! Skin”, however the certification provided related to a separate device and did not specifically cover the treatment of fungal nail infections.
We considered that, because we had not seen evidence that the product was a CE-marked medical device for the treatment of fungal nail infections, no medical claims could be made for the product, including references to the treatment of fungal nail infection. We therefore concluded that the claims breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising), 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 ICTV Brands UK Ltd t/a ClearTouch to ensure that they held adequate documentary evidence to show that their testimonials were genuine, to ensure that they held substantiation for claims relating to the cost of their treatments when compared with other forms of treatment and not to make any medical claims for the ClearTouch device until such time that they held appropriate medical device certification for it.