Ad description

Direct mailings for Nature's Range supplements, received in April and July 2011, showed a pack shot for Pernol which stated "PATENTED PERNOL GREEN LIPPED MUSSEL OIL EXTRACT - For Arthritis Pain, Inflammation & Joint Lubrication". The mailings stated "DO THESE ARTHITIS AND JOINT PROBLEMS SOUND FAMILIAR TO YOU? WELL YOU'RE NOT ALONE - Over two million people in the UK suffer from the crippling pain of arthritis, and if you're one of them, you'll know exactly how frustrating and all-consuming joint pain is - The pain never goes away. It's always there, eating away at your joints, making it impossible to enjoy a normal life. Your work suffers, your family life suffers, and those years of depression, tiredness, frustration and pain can lead to a life of misery. In fact, the situation can become so desperate, people will take dangerous, damaging steroids and other drugs, and even resort to painful operation after operation to try to ease the pain. The sad thing is that even your Doctor probably doesn't know (because no-one has told him) that it doesn't have to be this way - Available right now, is a powerful, proven and above all safe alternative, something that has completely wiped out arthritis pain in a whole community, something that has been used in secret for generation after generation to beat arthritis pain and inflammation. Better still, this powerful, totally natural remedy is available for you to use immediately, safely and quickly; and perhaps the best feature of all, you can try it without risking a penny, so you can decide first-hand if it will work for you".

Text on the third page stated "GET THE AMAZING POWER OF PERNOL WITHOUT RISKING YOUR MONEY! ... All that I ask is that you try Pernol, and see how you feel; and if within 60 days you don't feel the benefits ... simply return any unused tablets and under our no-quibble guarantee I'll refund every penny spent. That is my promise".

Below the order form on the fourth page, text stated "All Nature's Range products are covered by our 60 day Customer Satisfaction Guarantee, from the date of dispatch for the value of each product returned less £2.95 postage, packaging and administration costs attributable to every product unit".

Issue

1. The recipient challenged whether the claim "I'll refund every penny spent" was misleading because it was contradicted by the text below the order form which stated that £2.95 would be deducted for postage, packaging and administration costs.

The ASA challenged whether:

2. the efficacy claims for the product were misleading and could be substantiated; and

3. the ad discouraged essential treatment for a serious medical condition arthritis without the supervision of a doctor or other suitably qualified health professional.

Response

Nature's Range acknowledged receipt of the ASA's investigation by e-mail but supplied no evidence for their claims.

Assessment

Upheld

The ASA was concerned by Nature's Range'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., 2. & 3. Upheld

The ASA considered that to deduct £2.95 for postage, packaging and administration costs contradicted the claims that customers could try Pernol "without risking a penny" and that Nature's Range would refund "every penny spent". We also noted that Nature's Range had not supplied evidence to prove the efficacy claims for the product. In addition, we noted that the CAP Code stated that marketers should not offer specific advice on, diagnosis of or treatment for serious medical conditions, such as arthritis, unless it was conducted under the supervision of a suitably qualified health professional. However, Nature's Range had not shown that customers with arthritis would be under the supervision of a suitably qualified health professional. For those reasons, we concluded that the ad breached the Code.

On point 1. 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) and  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification).

On point 2. 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.
 and  12.6 12.6 Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.  (Medicines, medical devices, health-related products and beauty products).

On point 3. the ad breached CAP Code (Edition 12) rule  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 referred the matter to CAP's Compliance team.

CAP Code (Edition 12)

1.7     12.1     12.2     12.6     3.1     3.7     3.9    


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