Summary of Council decision:
Three issues were investigated, two of which were Upheld and one was Not upheld.
A website, www.ehicdirect.org.uk, for a commercial company that offered services to check and submit applications for the NHS European Health Insurance Card on behalf of customers was seen in December 2016.
At the top of each page of the website text stated “EHIC Direct European Health Insurance Card Application Service EUROPEAN HEALTH INSURANCE CARD (FORMERLY E111) Helpline: 0844 559 1069 …”. Below that, text scrolled across the screen that stated “PLEASE NOTE: following the results of the EU referendum, no changes have yet been announced to the European Health Insurance Card (EHIC) service. The NHS Business Services Authority is continuing to provide the EHIC service as usual, and you can apply for and use your card as before. (Source: NHS UK)”. At the bottom of each page, text in small print stated “Important: EHIC Direct is not connected to or affiliated with the Department of Health, the National Health Service, or any other Official Government Body. We offer a [sic] audit and submission service for European Health Insurance Card applications for a small processing fee. Please note that you can apply independently and at no cost for a card by visiting the official NHCBSA [sic] website or through the automated EHIC application service on 0845 …”.
The home page further stated “APPLY, RENEW OR REPLACE YOUR EHIC CARD USING THE FORM BELOW”. The form was shown as a box with the text “Main Applicant Details (Over 16)” and requested applicants provide their personal details after which they could click on the “Next” green button to proceed with their application. Adjacent to this was a blue box with the text “UNDER 16’s UNDER 16 Apply Here”. Below that small print stated “EHIC Direct is a third-party data processor for EHIC applications. Applications via this site are charged at £34.50. You can apply without a checking service where there will be no fee payable. We are not affiliated with the NHS or any government organisation”.
On the top right-hand side of the home page a button featured the text “CLICK HERE TO APPLY”, underneath which it stated “Disclaimer”, followed by the same text that was in small print in the box headed “UNDER 16’s”. Underneath, a button with the text “OFFICIAL NHS SITE” was followed by text that stated “If you wish to visit the official NHS website to apply free without the Check & Send service, click above …”.
Towards the bottom of the home page a table compared the services provided by EHIC Direct and the NHS, which included the text “Dedicated EHIC Under 16 application form”, “Online Apply feature available 24/7” and “Email and Phone Application Updates”. The table showed a tick against each service for EHIC and crosses for the NHS. A similar claim to that stated in the small print at the bottom of each page appeared underneath the table.
Further down the home page, text stated “Applying for an EHIC is free of charge via the NHS” with a link to the NHS website and text explaining other ways of applying via the NHS.
A page headed “Our Services” featured text that stated “European Health Insurance Card (Formerly called E111)” and below that was a button with the text “CLICK HERE TO APPLY”. Underneath text stated “… EHIC Direct fee of only £34.50 per family of applicants EHIC Direct is a third party data processor for EHIC applications. We are not affiliated with the NHS or any government organisation”. The bottom half of the page featured text that stated “You can apply for the EHIC free of charge at the NHSBSA website (www.ehic.org.uk)".
The ASA received a total of 84 complaints, 83 of which were from members of the public and one from the NHS Business Services Authority (NHSBSA).
1. The NHSBSA and 83 members of the public challenged whether the ad misleadingly implied that www.ehicdirect.org.uk was the official website for submitting European Health Insurance Card (EHIC) application forms.
The NHSBSA also challenged whether:
2. the comparative claims in the table on the website home page were misleading because NHSBSA provided the same services as the advertiser; and
3. the “Helpline” at the top of each page was misleading because they were unable to get through to an advisor.
Smith & Lawson Ltd t/a EHIC Direct stated that they had made significant changes to their website in response to our enquiries, which they considered adequately addressed the issues raised by the complainants.
1. EHIC Direct stated that they did not use the term “Official” in their advertising, other than for when they referred to the “OFFICIAL NHS SITE” as another way for consumers to get their EHIC.
EHIC Direct stated that they did not use any of the same logos, fonts, colours or layouts as the NHS website. Furthermore, adjacent to the box which requested the applicant’s personal details, text informed consumers that they would not be charged a fee for their European Health Insurance Card if they applied directly with the NHS.
EHIC Direct stated that there were a number of disclaimers on the home page. On the top right-hand side, directly underneath the “CLICK HERE TO APPLY” button, was the text "EHIC Direct is a third party data processor for EHIC applications. Applications via this site are charged at £34.50. You can apply without a checking service where there will be no fee payable. We are not affiliated with the NHS or any government organisation”. Furthermore, the disclaimer was in bold white text and was the first bullet point beneath the call to action button.
Another disclaimer appeared in the middle (towards the top) of the home page inside a box headed “UNDER 16”, which was identical to the previous disclaimer. Furthermore, it was in white text on a bright blue background and no additional text appeared within the box.
Approximately two-thirds down the home page and directly beneath the table comparing the services provided by the NHS and EHIC Direct was a further disclaimer, which read "Important: EHIC Direct is not connected to or affiliated with the Department of Health, the National Health Service, or any other official Government body. We offer a [sic] audit and submission service for European Health Insurance Card applications for a small processing fee. Please note that you can apply for a card independently without the £34.50 fee by visiting the official NHSBSA website or through the automated EHIC application service … Online - The best way to apply is online from NHS Business Services. Our site is independent of the NHS Business Services and it is available … at a cost of £34.50 per application … Standard applications are normally processed and delivered by the NHS within … By Telephone - You can telephone the NHS Business Services Authority EHIC application Line on … Making an application by phone is free of charge …”.
EHIC Direct stated that at the footer of every page on the website was a disclaimer in black text on a blue background, which was similar in wording to the disclaimer mentioned above.
On the “APPLY”, “UNDER 16”, “What's Covered”, “FAQs, “Our Services” and “Useful Information” pages, there was at least one other disclaimer which EHIC believed was presented prominently in addition to the disclaimer at the footer.
2. EHIC Direct stated that the comparative claim “Dedicated EHIC Under 16 application form” was based on their service offering consumers who were applying on behalf of an applicant under the age of 16 a more “user friendly” web page. They explained that this made the application process easier for them to understand and was a service not offered by the NHS.
EHIC Direct said that they emailed consumers a copy of their application details and like the NHS, provided an email address applicants could use if they needed any assistance. Furthermore, they mentioned that they also sent emails and text messages to consumers in circumstances when the NHS did not. This included when they established that errors or omissions had been made whilst manually checking an application form.
EHIC Direct claimed that they had been informed by consumers that where they had accidently made some typos in their application form and submitted it directly to the NHS, those errors had not been spotted by the NHS. Following this, EHIC submitted two bogus application forms via the official NHS website to see whether the two deliberate typographical errors they made in the name “Davvid Smitth would be spotted. Furthermore, they used a name ("Loadsa Gobaldygook”) which they considered was unlikely to be considered genuine. EHIC Direct believed that if the application forms were reviewed by a human examiner, they would be spotted as suspect and would warrant checking. However, no such checks were made with them before the cards were issued. In comparison, they stated that they reviewed all applications for EHIC cards which they received, and if they considered there had been a typographical error or information was missing, they would contact the applicant to double-check before submitting it to the NHS.
EHIC also explained that they contacted consumers within six months of when their European Health Insurance Card was due to expire.
3. EHIC Direct stated that on average, they had four agents per day who dealt with answering calls received via their helpline during the hours of 10 am to 5 pm Monday to Friday and along with call charges their phone number was displayed on their website. They explained that there could sometimes be longer waiting times during peak periods of the day and seasons and provided a screenshot of their telephone report for December 2016 (when the website was seen by the NHSBSA) to show that the advertised telephone number was genuine.
EHIC Direct provided telephone recordings where consumers had spoken with advisors regarding queries they had with their EHIC application form submitted via the www.ehicdirect.org.uk website. Furthermore, other callers had general queries on how they could obtain an EHIC card via EHIC Direct’s services.
The ASA welcomed EHIC Direct’s willingness to amend the content of their website, but given the number of complaints that were made, including those consumers who had paid a fee to obtain their EHIC card via the www.ehicdirect.org.uk website, we considered a formal ruling was appropriate on this occasion.
We understood that the www.ehicdirect.org.uk website enabled users to apply for a EHIC, but it was not the official government channel for that service. The advertiser charged for their application verification service, whereas the card was available for free when applied for on the official website, www.ehic.org.uk, accessible via the NHS Choices website. We considered that consumers were likely to infer that a website providing application services for a government issued document, such as an EHIC card, was official, unless it made clear that was not the case.
At the top of each page on the website, including the home page, text stated “EHIC Direct” in bright green and white font. The font size of that text was the largest sized on each web page and along with the colours used, made it prominent. Underneath that, smaller text stated “European Health Insurance Card Application Service”; the text “Application Service” was also bright green and almost directly below this was the scrolling text . We considered consumers were therefore likely to immediately see those claims and interpret them to mean that www.ehicdirect.org.uk was the official website for directly submitting EHIC application forms.
We acknowledged that the bottom of each web page featured the same small print disclaimer about EHIC Direct’s service. We considered that disclaimer contained material information likely to influence a consumer’s transactional decision to pursue their interest in using the www.ehicdirect.org.uk website and should therefore be clearly and prominently presented before they provided any personal information and/or clicked through to proceed with their application. However, consumers must bypass the entire content of the page in order to see the information in the disclaimer, we considered that it was not adequately prominent.
The home page featured the text “APPLY, RENEW OR REPLACE YOUR EHIC CARD USING THE FORM BELOW”, followed by a form for applicants aged 16 and over who were required to select the type of application they wanted and provide personal details before clicking through to the next stage. We noted there was no disclaimer within the form, to alert consumers prior to providing personal information that they were not on the official EHIC website and that a fee applied for the service provided, which could be avoided if they applied directly for their EHIC via the NHS.
On the home page a disclaimer appeared inside a blue box that was adjacent to the application form for those aged 16 and over. The blue box featured a bright purple heading that stated “UNDER 16’s”, and underneath that was larger text in bright yellow stating “UNDER 16?” along with “Apply Here” in white text. In contrast, the disclaimer was written in white text, was much smaller in size and in italics which made it difficult for consumers to read. We considered that consumers who were aged 16 and over and applying for their own EHIC were likely to disregard the blue box and the small text contained within it because the heading indicated that it related to the application service for those aged under 16. Furthermore, given that the disclaimer was not clearly presented, we considered that they, along with consumers applying on behalf of an applicant aged under 16, were likely to overlook it and consequently believe that they were on the official EHIC website.
Another disclaimer appeared in a box on the top right-hand side of the home page. However, in contrast to the button above it that stood out with the purple text “CLICK HERE TO APPLY”, which acted as a call to action directing consumers to the application process, the disclaimer was much smaller, written in white italics and consequently was also likely to be overlooked by consumers. The box also featured another button that stood out with bright purple text, which stated “OFFICIAL NHS SITE” which if clicked on directed consumers to the NHS website. Below the button text stated, “If you wish to visit the official NHS website to apply free without the Check & Send service, click above”. However, we noted that the text was also in white italics and was much smaller in comparison to the button above it and we considered it was therefore likely to be overlooked. Consequently, we considered consumers would focus on the bright purple text “CLICK HERE TO APPLY” and “OFFICIAL NHS SITE” and believe that they were on the official site for submitting their EHIC applications.
Other disclaimers were located on the bottom half of the home page (underneath a comparison table) and towards the bottom, which required consumers to scroll down and read through a large amount of information before reaching it. We considered that in these instances too, the disclaimers were not prominently presented. Taking into account the home page as a whole, we considered consumers were likely to infer that they were on the official EHIC website.
The top of the “Our Services” page also featured the “CLICK HERE TO APPLY” button. Underneath that a list of five points stated the benefits of the service. We noted that the first reference to a fee was in the final point. Directly below that a disclaimer stated “EHIC Direct is a third party data processor for EHIC applications. We are not affiliated with the NHS or any government organisation”. However, the disclaimer and the bullet point disclosing that a fee applied to the service were much smaller than the call to action “CLICK HERE TO APPLY” and were in white italics. That made the disclaimer appear less prominent, and along with not being presented directly underneath the call to action, we considered consumers were likely to overlook it. Furthermore, it was only towards the bottom of the page that consumers were informed that they could “apply for the EHIC free of charge at the NHSBSA website (www.ehic.org.uk)”. Consequently, we considered consumers were also likely to infer from the “Our Services” page that they were on the official EHIC website.
Therefore, because we considered the ad implied that it was the official platform for accepting EHIC application forms, we concluded it was likely to mislead consumers.
On this point the ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.10 (Qualification).
Notwithstanding that we considered that the ad implied EHIC Direct’s website was the official platform for accepting EHIC application forms, we considered that consumers who viewed the table on the home page closely would understand that EHIC Direct offered services that were not available to those who applied via the NHS.
We considered consumers would understand from the table that EHIC Direct offered a “Dedicated EHIC Under 16 application form” whereas the NHS did not.
We were informed by the NHS that EHIC applications for children under 16 must be made by their parent or legal guardian. We understood that the NHS offered a single standard form that could be used by applicants applying for their own EHIC or on behalf of an individual under 16. However, we understood that EHIC Direct’s application form for those under 16 requested the same information as required by the NHS form.
We considered consumers would also understand from the table that EHIC Direct offered an “Online Apply feature available 24/7” service and “Email and Phone Application Updates” whereas the NHS did not. Whilst we noted that the NHS had issued EHIC cards to EHIC in the names that had appeared on their bogus application forms, the NHS nevertheless also offered a 24/7 online application service as well as providing an email confirmation to consumers after they had submitted their application form, which included an email address consumers could use for any enquiries that they might have (as was acknowledged by EHIC Direct). Furthermore, we understood the NHS would also contact consumers via telephone for any further information that they needed to process their application forms.
We therefore considered that EHIC Direct had made inaccurate comparative claims regarding the services provided by the NHS EHIC application service, and concluded the ad was therefore likely to mislead consumers.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.33 (Comparisons with identifiable competitors).
3. Not upheld
We considered consumers would understand that they could call the “Helpline” telephone number and speak to an advisor at EHIC Direct regarding queries they had about their application form sent via the www.ehicdirect.org.uk website or for general queries they had on obtaining an EHIC via their services.
We noted the telephone report EHIC Direct provided showed that in December 2016 163 calls with a duration of 893 minutes and an average call duration of 5.48 minutes were recorded. Furthermore, the telephone recordings demonstrated that consumers had spoken with advisors regarding queries they had on their application forms submitted via the www.ehicdirect.org.uk website. We also noted that some callers had contacted the “Helpline” with queries on how they could obtain an EHIC card via EHIC Direct’s services.
Because of that, we considered that EHIC Direct had provided sufficient evidence showing that consumers had spoken with advisors via the advertised “Helpline” and therefore concluded was not misleading
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation), but did not find it in breach.
The ad must not appear again in the form complained of. We told EHIC Direct to ensure that their website did not create a misleading impression that it was the official NHS website for EHIC applications or that they were affiliated with the official NHS website. The website should make immediately clear the non-official nature of the service on offer and the additional cost of using that service compared to using the official service directly. We also told them to ensure that any qualifications were sufficiently prominent (for example, in conjunction with initial claims or calls to action, such as an application form or ‘Apply Now’ button), so as not to mislead consumers about the nature of their service. Any qualification should be of a clearly visible colour and sufficient size, and presented separately from other information, to ensure it was prominent and would be read by consumers. We also told them to ensure that any claims comparing their services to those of the NHS accurately represented the services of the NHS.