Three posters on buses in Glasgow promoted a company recruiting for, and running, clinical trials:
a. A bus poster, which displayed an image of an X-rayed hand with fingers crossed, was headlined "1 in 2 women over 50 will break a bone due to Osteoporosis". Text stated "To find out about our FREE Bone Density scanning programme visit www.improvinghealth.com, call 0800 XXX XXXX or text 'scan' to 80XXX. Your local Synexus Centre is located in Glasgow. help us to help you. SYNEXUS".
b. A second bus poster, which displayed an image of a female using an inhaler, was headlined "Do you have asthma?". Text stated "Register for a complimentary health check today and you could be part of our research into the future of asthma. Text asthma to 88XXX, call 0141 XXX XXXX or visit www.challenge-asthma.com. SYNEXUS. Help us to help you".
c. A third bus poster, which displayed an image of an older woman, was headlined "Concerned about diabetes?". Text stated "To find out about our free health screening programme, visit www.challenge-heartdisease.com, call 0800 XXX XXXX or text 'heart' to 81XXX. Your local Synexus Centre is located in Glasgow. We're getting to the heart of the matter. SYNEXUS".
Two complainants, one of whom was a GP, challenged whether the ads were misleading, because they did not make clear that participation in a clinical trial was required to obtain the free health checks.
Synexus Clinical Research said patients were under no obligation to participate in a clinical trial in order to undergo a DEXA scan or any of the other health checks offered by Synexus. They said they had a clear process whereby patients underwent the health checks before clinical trials were discussed in detail. They added that, after that discussion, they motivated the individual to go home and discuss the information with their family in advance of making a decision. They said the fact that patients were under no obligation to participate was evidenced by the fact that only 2% of the women who underwent their DEXA scan in the Glasgow area went on to join the clinical trial. They said that was also the case with the diabetes and asthma checks, and whilst they offered those checks with the objective of recruiting individuals for clinical trials, they ensured everyone was aware that there was no obligation to do so.
They said the DEXA scan was offered as it was a vital part of the assessment process necessary to recruit patients for osteoporosis clinical trials. They said each clinical trial undertaken globally would have a specific set of criteria which patients must meet in order to be appropriate for participation.
The ASA noted that the advertisers were offering free health scans, health checks and scanning programmes. We considered that consumers would therefore infer that the main feature of the advertisers’ business was to sell or provide health screening programmes and that, by visiting the websites referred to in the ads, consumers would find out more about how to take up the free offer and the types of scans and checks offered.
We noted, however, that the main focus of those websites was to promote participation in clinical trials and to invite consumers to establish whether they might be eligible for particular studies. We noted that there was no clear reference to the advertised “free health scans”, “free health checks” and “free scanning programmes” on the websites. Although we noted that the advertisers maintained that patients underwent the health checks before clinical trials being discussed in detail and were under no obligation to participate in the clinical trials, we considered the ads strongly inferred that the advertisers were offering free health scans, health checks and scanning programmes, but did not make clear that the main focus of their business was to recruit participants to clinical trials and that the free screening offered was related to potential recruitment in a trial.
Although we noted that ad (b) stated “Register for a complimentary health check today and you could be part of our research into the future of asthma”, which gave some indication that the advertisers were connected to clinical trial recruitment, we considered that the main focus of the claim was nonetheless to promote the “complimentary health check” and did not consider that the qualifying claim “you could be part of our research into the future of asthma” was sufficient for consumers to understand that the advertisers’ business was running and recruiting participants for clinical trials, and that the complimentary health check was offered in that context.
Because we considered that the ads (a), (b) and (c) did not make sufficiently clear that the advertisers ran and recruited participants for clinical trials and that the free screening offered was therefore related to potential recruitment for a trial, we concluded that they were misleading.
The ads breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising) and 3.23 3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. (Free).
The ads must not appear again in their current form.