A sales promotion, on Groupon's website on 20 April 2011, had headline text stating "Food Intolerance and Allergy Testing Session for £59 at Live Blood Test on Harley Street ..." Text in bullet points underneath stated "Highlights: Certified nutritional microscopist member of the CTHA, Results on video screen straight away, Food intolerance, allergies and weight loss testing ..." Text below stated "... Puncture testing is a common component in combating allergies ... Live Blood Test have made it their mission to improve their clients' general health, vitality and shape throwing techniques ... they offer a complete programme and full support for clients to volley in their achievable health goals, discovering what's causing particular hindrances and swiftly figuring out the best way to slide tackle issues with useful, honest nutritional advice. Groupon grabbers can whittle away any stressors and other anatomical nasties with a special food intolerance, allergy or weight loss assisting test. Opting for a unique approach to blood tests, clients will merely have to face a small pin prick to the finger ... providing an instant microscopic close up of your blood sample and highlighting just what the body is crying out for. Whether it's for undiagnosed allergies or intolerances, helping prevent future problems, battling fatigue, or slimming down a tad, the advanced technology can help to determine a suitable nutritional programme, helping maintain the body's natural defence mechanism and leaving plenty of time to practise back flips".
The complainant challenged whether the promotion's claims that the Live Blood Test could:
1. detect food intolerances and allergies;
2. assist with weight loss;
3. help battle fatigue; and
4. help maintain the body's natural defence mechanism
were misleading and could be substantiated.
Groupon explained that the practitioner with whom they ran the promotion had qualifications in iridology and nutritional microscopy and had studied for a degree in Chinese medicine before qualifying as a personal trainer and a nutritionist. They maintained that this was important when considering issues 2, 3 and 4 because it provided a foundation on which to understand the basis of the claims. They said that blood analysis was only one element of the service provided by the practitioner and that patients were also able to receive dietary advice and tailor-made eating plans based on their individual needs.
1. Groupon did not provide any evidence to substantiate the claim that the Live Blood Test could detect food intolerances and allergies. They pointed out they had requested this documentation from the practitioner but he was only able to provide documentation explaining the theory on which his food intolerance and allergy testing was based.
2. Groupon explained that someone visiting the clinic with weight problems would discuss their needs and be prescribed a sensible eating and lifestyle plan which could help with those issues. They said the results were not guaranteed but the overall programme could help people achieve weight loss goals, hence the phrase "weight loss assisting test" in the ad. Groupon said they had not purported that a Live Blood Test alone was capable of achieving the weight loss.
3. Groupon said that poor diet, lack of exercise and sleeping problems could all contribute to feelings of fatigue and that an effective way to address these issues, and their consequences, was to look at the person's lifestyle, eating and exercise habits and work with them to implement a plan which would result in greater levels of physical stamina, a more efficient use of energy and an ability to rest adequately. They pointed out that a well-balanced diet may also help with levels of concentration, helping to tackle mental fatigue. They said they had not purported that a Live Blood Test alone was capable of helping to battle fatigue and that this was only part of the service, the other elements being dietary and exercise advice and tailor-made nutritional plans.
4. Groupon explained that "helping maintain the body's natural defence mechanism" related to a healthy lifestyle and diet which allowed the body to function efficiently and maintain resistance to the types of germs and allergens people encounter every day. They maintained that incorporating adequate levels of vitamins and minerals into one's diet could, alongside sensible amounts of exercise and rest, play a role in maintaining a level of defence natural to the body. They pointed out that they had not claimed to improve the ability of the body to resist illness or disease, but simply to maximise its natural function through sensible lifestyle choices. They said this particular claim was deliberately preceded by "... help to determine a suitable nutritional programme ..." in order to ensure clarity over what part of the assessment and implementation process would engender this benefit.
1., 2., 3. & 4. Upheld
The ASA noted that the service entailed nutritional and lifestyle advice in addition to the live blood analysis, although we considered that the ad focused on the live blood testing element of the service. We understood that the service entailed a two-pronged approach: identify the intolerances or allergies from the microscopic live blood analysis, then rectify or respond to those intolerances or allergies with nutritional advice and plans.
We noted that Groupon had failed to provide evidence to substantiate the claim in point 1, that the Live Blood Test was able to detect intolerances or allergies and that, without substantiating this, they were not able to substantiate the claims in points 2, 3 and 4, that the results of such a test could be used to formulate nutritional advice and plans to "assist with weight loss", "help battle fatigue" or "help maintain the body's natural defence mechanism". We therefore concluded that the claims had not been substantiated and were misleading.
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.
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
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 reminded Groupon that before publishing a promotion, they should hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation.