Ad description
A mailing, for a sexual aid, viewed on 8 June 2011. Text stated “Like a Million Men Before You ... FEEL THE PULL! with the SEX MAGNET Magnetic Chip! Slip This Magnetic Chip in Your Pocket 1. And FEEL the pull ... from the wave of blood filling your penis in seconds ANYTIME you need a STIFF ERECTION! 2. Then feel the RUSHING TIDE of pleasure. And smile at your new found STRONG AS STEEL erection power! 3. NO pills ... NO Creams ... No Drugs ... No Supplements! Sex Magnet will keep you ramrod straight for up to 13 hours. Look inside for more information on how Sex Magnet works ... Designed by a Doctor! Works for 97% of All Men! Provides an Erection Anytime, Anywhere! Proven to Work by Over 1 Million Men! ...” The ad included several images of nude and semi-nude men and women in sexual poses. The ad also included an image of a naked man with an erection.
Issue
1. The complainant objected that the unsolicited ad was offensive due to the explicit sexual images.
The ASA challenged whether:
2. the efficacy claims made in relation to the product were misleading and could be substantiated; and
3. the ad could discourage essential treatment for a condition for which medical supervision should be sought.
Response
Natural Choice did not respond to the ASA’s enquiries.
Assessment
Upheld
The ASA was concerned by Natural Choice's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.
1. Upheld
We noted that the material contained within the mailing, from the opening page onwards, was sexually explicit. We considered, therefore, that its marketing required very careful targeting to ensure that it was distributed responsibly and to avoid causing offence to unsuspecting recipients. However, we understood from the complainant that the mailing was unsolicited. Since the ad was likely to cause serious and widespread offence and had not been adequately targeted, we concluded that the ad breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Compliance), 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay) and 4.1 (Harm and offence)
2. Upheld
Natural Choice did not supply any evidence to support the efficacy claims made in the ad. We therefore considered that the claims had not been substantiated and concluded that the ad was misleading.
On this point, the ad breached CAP Code (Edition 12) rules
1.3
1.3
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
(Compliance),
1.7
1.7
Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code.
(Unreasonable delay),
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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) 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)
3. Upheld
We noted that the ad made repeated references to erection problems and claimed that the product could treat those problems. In that context, we considered that the ad could encourage readers with erection problems to use the product to treat their condition, rather than seek advice from a medical professional. We therefore concluded that the ad could discourage readers from seeking essential treatment for a condition for which medical supervision should be sought.
On this point, the ad breached CAP Code (Edition 12) rules
1.7
1.7
Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code.
(Unreasonable delay),
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising) and
12.2
12.2
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered (see rule
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.
).
Health professionals will be deemed suitably qualified only if they can provide suitable credentials, for example, evidence of: relevant professional expertise or qualifications; systems for regular review of members' skills and competencies and suitable professional indemnity insurance covering all services provided; accreditation by a professional or regulatory body that has systems for dealing with complaints and taking disciplinary action and has registration based on minimum standards for training and qualifications.
(Medicines, medical devices, health-related products and beauty products)
Action
The ad must not appear again in its current form. We asked CAP to inform its members of the problem with Natural Choice. We told Natural Choice to ensure similar marketing communications were carefully targeted in future to avoid causing offence. We told Natural Choice to ensure they held robust substantiation to support all efficacy claims in future. We also told Natural Choice to ensure that future ads did not discourage readers from seeking essential treatment for a condition for which medical supervision should be sought.
CAP Code (Edition 12)
1.3 1.7 12.1 12.2 3.1 3.11 3.7
