Annexes submitted by the Advertising Standards Authority (HO44a)

Annex 1: Relevant Advertising Codes and Homeopathy

The Advertising Codes can be found in full on the CAP website: www.cap.org.uk

CAP CODE

3 Substantiation

· 3.1 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.
Relevant evidence should be sent without delay if requested by the ASA or CAP.  The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication.  The full name and geographical business address of marketers should be provided without delay if requested by the ASA or CAP.

· 3.2 If there is a significant division of informed opinion about any claims made in a marketing communication they should not be portrayed as generally agreed.

7 Truthfulness

· 7.1 No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.

· 7.2 Marketing communications must not omit, hide or provide in an unclear, unintelligible, ambiguous or untimely manner material information if that omission or presentation is likely to affect consumers' decisions about whether and how to buy the advertised product, unless the information is obvious from the context. If the advertisement is limited by time or space, the ASA will take into account steps that the advertiser has taken to make that information available to consumers by other means.

50 Health and Beauty Products and Therapies

· 50.1 Medical and scientific claims made about beauty and health-related products should be backed by evidence, where appropriate consisting of trials conducted on people.  Where relevant, the rules will also relate to claims for products for animals.  Substantiation will be assessed by the ASA on the basis of the available scientific knowledge.

· 50.3 Marketers should not discourage essential treatment.  They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional (eg one subject to regulation by a statutory or recognised medical or health professional body). Accurate and responsible general information about such conditions may, however, be offered.

· 50.6 Marketers offering individual treatments, particularly those that are physically invasive, may be asked by the media and the ASA to provide full details together with information about those who will supervise and administer them. Where appropriate, practitioners should have relevant and recognised qualifications. Marketers should encourage consumers to take independent medical advice before committing themselves to significant treatments, including those that are physically invasive.

· 50.11 Medicines must have a marketing authorisation from the MHRA before they are marketed and any claims made for products must conform with the authorisation. Medicinal claims should not be made for unauthorised products.  Marketing communications should refer to the MHRA, the authorisation or the EC only if required to do so by the MHRA.

· 50.19 Homeopathic medicinal products must be registered in the UK.  Any product information given in the marketing communication should be confined to what appears on the label. Marketing communications should include a warning to consult a doctor if symptoms persist. Marketing communications for unauthorised products should not make any medicinal or therapeutic claims or refer to any ailment.

RADIO BCAP CODE

The Radio BCAP Code includes principles on substantiation and truthfulness, similar to those in the non-broadcast CAP Code, which can be found online.

4.13 Homeopathic Medicinal Products

Advertisements for homeopathic medicines are acceptable, subject to all relevant requirements of EC Council Directive 2001/83/EC (as amended by 2004/27/EC) on medicinal products for human use implemented in the UK by the Medicines (Advertising) Regulations 1994 (as amended).

In particular:

a) advertisements are only acceptable for products which have been registered in the UK;

b) product information must be confined to that which appears in Schedule 5 of the Medicines (Advertising) Regulations 1994.

Advertisements may not, therefore, include medicinal or therapeutic claims or refer to a particular ailment;

c) advertisements must include wording such as 'always read the label' or 'always read the leaflet' as appropriate.

TV BCAP CODE

The TV BCAP Code includes principles on substantiation and truthfulness, similar to those in the non-broadcast CAP Code, which can be found online.

8.2.2 Homeopathic medicinal products

(a) Only homeopathic medicinal products which are registered in the UK may be advertised

(b) The only information which may be included is that which is allowed to appear on product labelling. Advertisements may not, therefore, include medicinal or therapeutic claims or refer to a particular ailment

Note to 8.2.2:

This rule incorporates the requirements of EC Directive 2001/83/EC (as amended by EC Directive 2004/27/EC) on Medicinal Products For Human Use.

Annex 2: CAP Copy Advice

Therapies - Homeopathy

This section should be read in conjunction with the entry on 'Therapies, General'.

This discipline works on the principle of treating like with like, with the active ingredient diluted heavily in water. Despite its popularity, CAP understands that no scientific rationale exists for assuming that remedies lacking in pharmacologically active molecules can produce clinical effects and is unaware of robust evidence that proves it does. Some homeopaths seem to be medically qualified and therefore regulated by the General Medical Council. Those who are medically qualified may make claims about treating conditions but only if it is clear that the efficacy is due to conventional treatments. Those practitioners who are not medically qualified should not make claims about the efficacy of their treatments and should not refer to serious medical conditions.

In July 2007 the General Media Panel considered the application of Clause 50.6. It concluded that complementary and alternative therapy practitioners offering significant or invasive treatments should encourage consumers to take independent medical advice before committing themselves to the treatment.

Clause 50.19 requires homeopathic medicinal products to be registered in the UK. Marcoms should refer consumers to a doctor if their symptoms persist and should not make medicinal or therapeutic claims for unauthorised products. See 'Medicines: Homeopathic Medicines'.

Annex 3: Two Recent Rulings

Homeo Home - 25 March 2009

Ad

Monitoring staff viewed an ad in Bengali on Channel S for the Homeo Home homeopathic practice.  The ad showed a sign for the homeopathic practice; it stated "Dr Chakresh Chakraborty, Homeopathic Consultant".  

A man, referred to in on-screen text as "Dr Chakresh Chakraborty", was shown sitting at his desk with a stethoscope. The Bengali voice-over stated "Renowned homeopathic practitioner from Dhaka, Dr. Chakresh Chakraborty has been treating a lot of new and complex diseases for the last three decades ... for asthma, skin disease, sexual diseases, spondilitis, diabetes, hay fever, migraine, infertility, piles, mental stress and various other diseases ...

Issue
Monitoring staff challenged whether the ad:

1. gave the impression of professional medical advice;

2. made medical and therapeutic claims for treatments and referred to specific ailments.

Assessment
Upheld
Channel S stated that homeopathic consultants were often referred to as doctors within the Asian community.  We considered the ad implied the man providing the treatment was offering professional medical advice because, in the on-screen text and the voice-over, he was referred to as "Dr. Chakresh Chakraborty" and also as "Homeopathic Consultant".  Also, the ad showed people being offered advice in a setting that looked like a doctor's surgery.  We understood that Dr Chakresh Chakraborty was not qualified as a medical doctor and so referring to him as such was misleading.  We considered that giving the impression of professional advice was unacceptable in advertisements for products or treatments within the remit of Section 8 of the Code.

Upheld
We considered that the ad implied medical treatments were being offered. Furthermore, the ad referred to specific ailments, contrary to the Code.

The ad breached CAP (Broadcast TV Advertising Standards Code rules 5.1 (Misleading advertising) and 8.1.2 (Impressions of professional advice and support).
8.2.2 (b) (Homeopathic medicinal products).

Action
We concluded that the ad must not be shown again in its present form.


Darulshafa Shirquia - 15 July 2009

Ad
A TV ad, in Urdu, for a herbal practitioner showed a man limping into a clinic. The ad featured scenes of the clinic staff and then showed the same man playing football with a group of boys. The voice-over stated "Darulshafa herbal clinic has been established in the UK for 41 years. Mr Mazhar Rana is a qualified herbalist and has been practicing for the past 23 years ... All our remedies are prepared using herbs from all over the world and to the finest standards possible. For treatment in good time contact us today". On-screen text throughout the ad gave the contact details for clinics in Bradford, London and Birmingham, as well as a website address. One of the staff members stated "Darulshafa. Renewing traditions, inspiring quality".

Issue

One viewer, a medical doctor, challenged whether the implied claim that the advertiser's herbal remedies could treat and cure medical conditions could be substantiated.

Assessment
Upheld
The ASA considered that the scene of the man limping into the clinic, followed by the scene of the same man playing football, implied that he had a medical condition that had been treated at the clinic. We considered that impression was reinforced by the claim "All our remedies are prepared using herbs from all over the world and to the finest standards possible. For treatment in good time contact us today", which was spoken over the scene of the man playing football, and which we considered suggested that the man had been treated using herbal remedies.

Furthermore, we were concerned that some viewers might consider the man had not only been treated but cured of his medical condition. We considered that, unless allowed by a marketing authorisation, illustrations that implied a cure of any medical condition were unacceptable. We were also concerned that, by offering a treatment or cure for a medical condition, the ad gave the impression that a medical consultation was not necessary for conditions for which qualified medical advice should be sought.

We noted that we had not seen any evidence that showed that the herbal remedies provided by Darulshafa could treat or cure medical conditions or that they held a marketing authorisation, and we therefore concluded that the ad was misleading.

The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 (Misleading advertising), 8.2.6 and 8.2.9 (Medicinal products and treatments).

Action
The ad must not appear again in its current form.

November 2009