Challenging misleading healthcare claims

How to submit a complaint to the ASA

The ASA provide an excellent summary to help you submit your complaint:

Make a complaint

    1. First, check whether your complaint is covered by the ASA. Find out what we cover here, or if you're still not sure, call/textphone us to discuss your complaint. Our contact details can be found here.
    2. If it is, submit your complaint online, or telephone, textphone, or write to us.
    3. We’ll give you the name of the person who will handle the case and be your point of contact.
    4. The names of those who make a complaint are kept confidential from the advertiser, unless you are asking us to have your name taken off a mailing list or the complaint is from an individual, competitor or organisation with obvious interest in the outcome of the complaint (such as consumer bodies and pressure groups).
    5. We can often resolve complaints quickly. For instance, we can have an ad changed if it’s a minor mistake or chase up an undelivered mail order item on your behalf. If it’s not that simple, we may need to conduct a formal investigation, which can take longer. If you intend to raise multiple points of complaint, please focus your concerns and limit your complaint to what you feel are the three most important issues. If we decide to proceed with a formal investigation, we will investigate a maximum of three points in most cases, in line with the ASA’s commitment to focus its resources in the most impactful way. Find out more.
    6. A formal investigation means the ASA Council will rule on the matter. We contact all parties involved (complainant, advertiser and, if appropriate, the broadcaster) and inform them of the process. We ask the advertiser and broadcaster to provide evidence for any claims they make and, if needed, to provide justification about why they thought the ad was appropriate.
    7. We consider all the information we receive and place the facts of the case before the ASA Council which decides whether the Advertising Codes have been breached.
    8. We publish our rulings in full every Wednesday and make the findings available to the media.
    9. Ads that break the rules are required to be amended or withdrawn, if they aren’t, we will take steps to make sure our ruling is followed.
    10. We take every step to make sure the process is fair, which is why there is an Independent Review Procedure that allows complainants and advertisers to request a review of a ruling.

This leaflet provides a straight forward guide to our process Making a complaint.

You can also read our detailed complaints handling procedure for both broadcast and non-broadcast advertising.

Complaining about an overseas ad?

Then your complaint will be treated as a cross-border complaint. Read more here.

Consider your complaint

First, consider what it is you're complaining about. It's worth making sure you have a good understanding of the ASA's view on health claims, particular therapies and what they consider to be adequate evidence to substantiate claims.

The ASA's Guidance on Health Therapies and Evidence is well worth reading as it answers the following questions that are relevent to both advertisers and complainants:

1. What are the key requirements of the Codes?

2. Do the Codes and ASA regulation relate to all aspects of my business?

3. Are there differences between how you assess different media?

4. I don’t claim to ‘cure’, why can’t I claim to ‘treat’ certain conditions?

5. What standards are applied to evidence?

6. My therapy has been used for hundreds / thousands of years. Is that sufficient to make claims for its efficacy?

7. I work in a holistic field. Why does the ASA require evidence on a rigid scientific model? This model does not address all aspects of my approach or outcomes?

8. Has the ASA assessed all the evidence?

9. Why can’t I refer to the many positive studies and ongoing research?

10. Do you accept feedback that I have had from my clients as evidence?

11. Are recommendations from NICE or similar organisations acceptable?

12. Can I use trials that have been conducted on a non-UK population to substantiate my claims?

13. Is it possible to have my evidence assessed?

14. Can I use testimonials in my advertising?

15. Why do you allow consumer-based claims for some products and not for health therapies such as mine?

16. What are the criteria for selecting an expert to review evidence?

17. My trade / professional association has given me advice that differs from yours. What should I do?

To highlight just one of these, therapists are frequently seen providing a list of medical conditions, sometimes introduced with "People come to see me with…" or "The therapy has been known to help with…" or sometimes just the list on its own. The ASA explain:

Whether you use the words ‘treatment’, ‘treat’ or ‘cure’, all are likely to be seen by members of the public as claims to alleviate effectively a condition or symptom. We would advise that they are not used either directly or indirectly, through the use of visuals for example. Of course, if evidence has been shown to support the claims, then these words can legitimately be used.

Marketers should be mindful that merely listing medical conditions could imply their treatment or therapy is effective.

Remember that the ASA will:

…take into account the impression created by marketing communications as well as specific claims. It will adjudicate on the basis of the likely effect on consumers, not the marketer’s intentions.

In the case of a list of medical conditions, this simply raises the question of what the intentions of the advertiser actually were.

Evidence

Note that it's up to the advertiser to provide an adequate level of evidence to the ASA for the claims made: it's not up to the complainant to show that the claims are not substantiated or to provide contrary evidence. Also, if the advertiser doesn't cooperate with the ASA, that could be a breach of the CAP Code in itself. Although this does happen sometimes, the vast majority of advertisers do cooperate and provide their evidence to the ASA, even if the ASA rules that it is not adequate for the claims made. It's likely that advertisers are just not aware of the rules they are meant to abide by or that they really believe they have good evidence for their claims rather than wilfully and deliberately trying to mislead consumers.

The ASA's approach to what constitutes adequate evidence for claims is described in Substantiation for health, beauty and slimming claims (non-broadcast). This is also well worth reading as it highlights why so many claims made for alternative therapies are not allowed by the ASA: there is frequently no good scientific evidence that substantiate the claims made.

In many cases, the ASA will already have an established position on what claims they will allow an advertiser to make — unless there has been some new high quality research that's been published, they are unlikely to change their position. See all their advice and guidance and their specific guidance on a wide range of therapies.

Although their guidance on many therapies is very similar, the ASA have singled out homeopathy for special attention: Guidance for Advertisers of Homeopathic Services. In this, they say:

Claims to avoid

In the simplest terms, you should avoid using efficacy claims, whether implied or direct, that aren’t supported by robust evidence. If you are stating or implying that you, your service or a product can be effective in doing something, you need to ensure that you have the evidence to prove the claim.

If you are making claims for a homeopathic product, or for a treatment based on a specific product, or combination of products, you may only make such claims as are permitted by the product licence(s). You will need to consult the MHRA for advice on this point.

To date, the ASA has have not seen persuasive evidence to support claims that homeopathy can treat, cure or relieve specific conditions or symptoms. We understand this position is in line with other authoritative reviews of evidence.

We therefore advise homeopathy marketers to avoid making specific claims of efficacy for treatments where robust evidence is not held to substantiate them.

Note that they do allow some claims for certain therapies such as hypnotherapy, acupuncture and even chiropractic, so check before submitting your complaint — and check to see if the advertiser is going further than the very specific wording the ASA allows. Sometimes the ASA advises advertisers against making some particular claims unless the advertiser holds suitable evidence. If you don't think that suitable evidence exists, you can include this in your complaint.

Their publication Health beauty and slimming marketing that refers to medical conditions (non-broadcast) provides additional guidance on what some particular therapists can claim and what they cannot claim. Of particular interest is their list of 'Conditions for which suitably qualified medical advice should be sought'.

There is no need to try to identify what sections of the CAP Code you think have been breached: the ASA are the experts and they are best placed to decide this, but sometimes it's helpful to explain why you believe a particular claim is misleading as this can help the ASA understand your perspective.

There is also no need to encourage others to complain about the same advert: the ASA only need one complaint to act and any others simply adds to their administrative burden.

Permitted claims for homeopathy and herbal products

Note that homeopathic products that are authorised by the MHRA under their National Rules scheme are permitted therapeutic indications provided the wording prescribed in the product's Public Assessment Report (PAR) is used. Homeopathic products that are registered under the MHRA's Homeopathic Rules scheme (aka the Simplified scheme) are not permitted indications. Herbal products authorised under the MHRA's Traditional Herbal Medicines Registration scheme are also permitted therapeutic indications, but again, the prescribed wording in the PAR must be used. The ASA will permit advertising for these products as long as the prescribed wording is used.

Screenshots

It's important that you provide evidence of the ad: if it's an Internet page, upload a screenshot (or other copy) of it; if it's a paper leaflet, newspaper ad, etc upload a scan or a good photograph of it. You will be prompted to do this during the online submission process. Remember that websites can be changed easily and quickly and the ASA may not be able to pursue your complaint if you are unable to provide them with a screenshot of the ad.

Submitting your complaint

arroworangeRead Writing a complaint

You may find it easier to compose your complaint off-line then copy the information into the ASA's online form — this gives you a record of what you submit because the ASA don't send you a copy of your complaint. Alternatively, you can fill the form in on-line, but don't take too long in case it times out and you have to start again — but remember to take a copy of your complaint before clicking on 'Submit your complaint'. Note that there is a 5,000 character limit for the 'Description of complaint', which, although more than adequate for many complaints, may not be enough. If you really need more, you can attach your complaint as a document and upload it at Step 3 of the process.

Note carefully what the ASA say about limiting your complaint to just three points. This should be possible to do in most cases: it's not necessary to go into a lot of detail about each and every claim. For example, if an advertiser lists a number of medical conditions they can treat, all you need to do is highlight where these are made and that you don't believe the advertiser could substantiate them. Simply select what you think are the most egregious or most misleading claims.

Complaints should be made in your own name: even though you may have used advice from us or our website, please do not suggest that you are submitting a complaint on our behalf or imply that you are associated with the Nightingale Collaboration. If you complain as a member of the public (and are not a competitor of the advertiser), the advertiser will not be told who you are — all that matters is the substance of your complaint. The ASA come to their decision based on whether the claims breach the CAP Code, not on who makes the complaint and remember that it is the ASA that decides if an advert breaches their Code.

After you've submitted your complaint, you will receive a confirmation email (it may take a day or so). This will give you a reference number for your complaint — take note of it and quote it in any correspondence with the ASA about your complaint.

Example complaints

The best way to describe how to write a complaint is to show some examples.

A simple complaint about claims made by a chiropractor:

The advert states:

"Chiropractic can successfully treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying."

I doubt that the advertiser can substantiate those claims.

More egregious claims:

The website states:

"Ebola Treatments and Testing: Give hope to those who need it most without medication! Bioresonance has not been tested or verified with the Ebola Virus, however it has been very successful with other hemorrhagic virus's [sic]. It is hoped that medical institutions in affected areas can apply our treatment protocols listed on this site and register their successful outcomes."

"Ebola Vaccine No proven vaccine currently exists but…A bioresonance company in Australia has had some success preparing travellers against other pathogens like Bird Flu, Dengue, Japanese Encephalitis, Yellow Fever etc, in fact many pathogens can be used in a single tablet. The pathogenic frequencies are inverted and stored in pill form and taken during the trip."

I doubt that the advertiser can substantiate those claims.

 A list of medical conditions on a homeopath's website:

The webpage said:

Ailments

  • Abscess
  • Acne
  • Alcoholism
  • Anaemia
  • Angina
  • Anxiety
  • Arthritis
  • Asthma
  • Bloated Stomach / Wind
  • Breast Pain / Cysts
  • Blood Sugar Imbalance
  • Blood Pressure
  • Bruises
  • Candidiasis, Fungal Infections & Yeast
  • Cellulite
  • Cholesterol
  • Circulation
  • Coeliac Disease
  • etc, etc 

I doubt that the advertiser can substantiate those claims.

If you don't think it's clear what claims you're referring to, provide some explanation, but it should be obvious in most cases.

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