Summary of Council decision:
Three issues were investigated, of which one was Not upheld and one was Upheld. The third issue was informally resolved after Medichecks agreed to withdraw their advertising.
The website www.medichecks.com for Medichecks.com, an online blood test and health check provider, seen on 14 September 2017, stated, “We’re the UK’s leading online private blood check specialist”.
1. Harley Street Health Checks UK Ltd, t/a Blue Horizon Medicals, challenged whether the claim “we’re the UK’s leading online private blood check specialist”, was misleading and could be substantiated.
2. They also challenged whether the claim was verifiable.
1. Medichecks.com Ltd t/a Medichecks said that they were a digital business, and consumers bought, received the product and then got their results online. There was no independent verification of sales figures of their nearest competitors because they were all privately held companies and had not yet reached the size where they were required to file full accounts which would contain revenue figures. Even if they did, the information would be out of date by the time it was published. Therefore, to substantiate the claim, Medichecks used independent third-party tools that monitored website visits, to infer market share.
Medichecks said they had paid for a subscription with an established web-traffic analysis service, which identified their online competitors’ volume of visits and unique visits, amongst many other variables. They provided a comparison of their website against the three websites owned by Blue Horizon Medicals for the previous six months, which showed that the combined number of unique visitors for three of Blue Horizon Medicals’ websites was significantly less than Medichecks’ total number of unique visitors. They also provided similar analysis for their wider competition who were selected based on the competitors who had the biggest overlap in terms of Google search queries in the UK. The results showed that Medichecks had higher web traffic than the four biggest competitors combined.
Medichecks provided a similar analysis, from another independent third-party tool, of their web traffic compared with the company they considered their closest competitor; this also showed that the number of visits to their website was double that of this competitor. They said the results confirmed that over the last six months they dominated market share in terms of website visits and unique visitors. They said that they looked at all of Blue Horizons Medical sites and that even when combined and allowing for sampling discrepancies, their numbers were not near to the traffic numbers shown for Medichecks.
Medichecks acknowledged that while the tools did not produce completely accurate visitor numbers because – just like all web traffic analysis tools – they involved some sampling and extrapolation, the tools made a robust estimate on the relative number of visits to each website. They took the view that because the tool used the same methodology for each website and given the similarity of content and search terms being used by visitors to reach these sites, if an assumption led to an overestimation of traffic to one site, the same assumption was very likely to have the same effect when estimating traffic to other sites. Medichecks said that using a different tool they were able to track traffic to the sites they were comparing across all channels (including direct traffic, email and any referral traffic from third parties), if they linked back to the public website and any pages that sat under the principle URL. They said that the tool was not able to track or estimate visits to pages that were hidden from view that had been set up to facilitate business-to-business transactions.
Medichecks said that they also sold blood tests to their corporate customers and had created web pages to facilitate these business-to-business transactions. However, they said those were excluded from the analysis of their competitors, because even though they were accessed via the internet, they did not consider that consumers would understand the claim to encompass business-to-business transactions. They said they believed the claim would be understood by consumers to refer to sales made by the general public with their own money on a publicly accessible site.
Medichecks said that they converted visitor numbers into their estimate of competitive sales. They said that retail e-commerce sites generally convert at between 2% and 4% of visitors, and that Medichecks fell within that bracket. They said that some conversion rates were higher, but they believed that rates above 10% had never been achieved on a retail e-commerce site. They said that their competitors would need a conversation rate of up to 40% to have a higher market share than Medichecks. They said that being able to track every visit to the website meant that they were able to ascertain how much revenue was generated, so they knew that greater web visits usually meant greater levels of sales.
Medichecks also referred to an online article dated June 2017 about their closest competitor, which indicated that Medichecks’ monthly revenue was more than that competitor’s annual revenue. They said that in order for the competitor to have greater sales than Medichecks, they would have had to increase sales by a very large amount in the space of only a few months, at a time when their web traffic had declined relative to Medichecks, which they considered was highly unlikely. They also said that while they had included the competitor in the analysis, they were not directly comparable because Medichecks sold over 1,000 tests and the competitor had a range of three main profiles.
Medichecks said that they accepted that other companies provided blood check tests online, but they were not identified by the web traffic analysis tools to be significant online competitors. Also they did not specialise only in the sale of blood tests as did Medichecks.
2. Medichecks did not provide evidence that they had provided information for consumers to be able to verify the claim.
The ASA considered that consumers were likely to interpret the claim “the UK’s leading online private blood check specialist”, to mean that Medichecks had provided more blood checks than any other online UK company who specialised in blood checks. We further noted that the claim appeared on the main consumer-facing section of the website and that the explanation of how the process worked was presented from the perspective of a consumer ordering a personal blood test online. In that context, we considered that consumers would understand the claim to refer to personal blood checks that were provided to consumers online, as opposed to blood checks sold separately to corporations in business-to-business transactions.
We understood that Medichecks did not have access to their competitors’ sales figures because their competitors did not publish their company accounts. Instead, Medichecks had relied on data collated by an independent third party over a six-month period which compared their web traffic with their competitors. The results showed that the number of Medichecks’ unique visitors was more than their four closest competitors combined. The results further showed that Medichecks had more than double the number of total visits than their closest competitor. We noted that was also confirmed by another independent third-party tool. Although the figures produced by the tools could not represent completely accurate visitor numbers, we understood the tools used reliable sampling methods to produce robust estimates of relative number of visits to websites. While we acknowledged that the tools did not track visits to pages that did not use the principal URL, such as corporate access pages, as mentioned above, we considered that the claim would not be understood to include business-to-business transactions.
We considered that it was appropriate to rely on the tools to be indicative of visitor numbers. We understood that for their competitors to have a higher market share, they would have to have converted up to 40% of their visitor numbers into sales, when it was exceptionally rare for an e-commerce retailer in any market to have a conversion rate of above 10%.
We considered that, while visitor numbers alone was generally not a guaranteed indication of market share, because the difference between Medichecks and their competitors’ web traffic was so great, in these particular circumstances, it was reasonable to infer that Medichecks had provided more blood checks than any other online blood check specialist.
For those reasons, we concluded that the claim “we’re the UK’s leading online private blood check specialist” had been substantiated and was not misleading.
We investigated the ad under 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 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons), but did not find it in breach.
The CAP Code required comparisons with identifiable competitors to be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include sufficient information about the comparison in order to allow consumers to understand the comparison being made, or to signpost where they could access the information for themselves to check the claims were accurate.
We considered that the claim “we’re the UK’s leading online private blood check specialist” was a comparative claim with other private companies who specialised in providing online blood tests, and that it was reasonable to assume that consumers would be able to identify other companies who also specialised in selling blood tests online. We therefore considered that the claims were comparisons against identifiable competitors.
We noted that there was no information in the ad which provided information about the basis of the comparison and how it had been calculated, or a signpost about where consumers could access such information to check that the claim was accurate. We therefore concluded that the ad had not allowed consumers or competitors to verify the comparison, and as such, the ad was in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
The ad must not appear again in its current form. We told Medichecks.com Ltd t/a Medichecks to include information in the ad to allow consumers to verify the claim, or a signpost to where consumers could access that information.