WDDTY 'exposes' the ASA but slightly misses the point I think

Since I've been blocked from the "What Doctors Don't Tell You" Facebook page I can't comment there and I doubt they'd publish a letter from me so I'm posting it here. I'm still smarting a little bit from the ban to be honest as I don't think I could have been any more polite while disagreeing with someone - I pointed out that people who are critical of WDDTY might not be 'Big Pharma shills' (after all, I'm not).

Of course my blog is indexed in Google (nothing unique to me, most blogs are and Blogger is owned by Google) so this text may well show up when people search for WDDTY-related material in a way it probably wouldn't if I'd posted it on Facebook. So swings and roundabouts.

I've had a look at the December edition of this magazine and was disappointed though not surprised by the WDDTY Opinion Piece on the Advertising Standards Authority. I think bits of it are wrong, but bits of it are also encouraging people to focus on the wrong battle. In addition to the ASA there's a lot that a knowledgeable, motivated, collaborative and snarky bunch of bloggers can do and have done to try and tackle misleading advertising claims.

If you spot any mistakes in my arguments below please let me know, thanks.

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Dear WDDTY

There seems to be some confusion in your opinion piece on the ASA (Advertising Standards Authority) and its role. Since the pharmaceutical industry is not allowed to advertise directly to the public in the UK the ASA does not rule on any of its marketing material. The PMCPA (Prescription Medicines Code of Practice Authority) is the body that makes sure that pharma companies are operating within the ABPI's (Association of the British Pharmaceutical Industry) code - if drug advertising (found in the medical not general literature) is misleading then the PMCPA can take action against it. The ASA instead ensures that marketing material is compliant with the CAP (Committee of Advertising Practice) code.

In both cases the two agencies are paid for by the industries that they regulate, so I don't think the ASA is paid for by pharma companies. Undoubtedly some pharma companies have a non-prescription only medicine wing that they might advertise to the public so I'll accept that there might be some money from them.

I am more concerned that the tone of the article suggests to readers that the ASA is getting a bit above itself and can be ignored. I'm not sure that this is helpful to any of your readers who are making health claims without robust evidence because they may not realise what happens if someone reports them to the ASA.

I've probably reported only around 30 adverts or marketing items to the ASA. In one or two cases the ASA disagreed with me and felt there was no case to answer, a few more have been resolved informally but rather a lot have resulted in an adjudication in 'my' favour. To be honest I'd have preferred that the organisations involved just amended their pages when first asked, and saved themselves and the ASA the bother.

Within this relatively small, compared with other skeptic bloggers, number of complaints I have had a pretty high success* rate and this is what I've learned from going through the process several times.

*I think it's important to say that my definition of success is a misleading claim being removed or modified and not just someone getting told off. I'd be lying though if I said I hadn't also enjoyed some of the worst cases being told off.

A complaint is made to the ASA
Initially the ASA will probably contact the organisation / marketer and ask them to amend any misleading claims. Even if they do so promptly the ASA will still list this on their website as an 'informally resolved' case - i.e. the mere act of me reporting a website tends to result in their trading name being listed on the ASA (this is why I'd prefer to have a quiet word with the marketer first but this rarely goes well).

Marketer decides to defend their claims
If they decide to challenge the ASA by providing evidence then the ASA will deliberate further and make an adjudication. Either it will go in the marketer's favour (not upheld) or it won't (upheld) but again in either scenario the case will be listed on the ASA's website on its own separate page and will likely be tweeted.

Marketer told to amend claims, marketer doesn't
If, after an adjudication is upheld, the marketer still doesn't amend the claims then the ASA may add them to its list of non-compliant online advertisers. It can also work with search engines to remove paid-for advertising and take out an advert itself about the misleading claims. In parallel with this there's a high chance that it will be tweeted and blogged about and may even make it to the mainstream press. The ASA has recently (as of 21 November 2013) strengthened its relationship with Trading Standards and if the claims are still problematic then the ASA can refer the marketer to Trading Standards. At that point things could well become rather serious as Trading Standards can bring a case against them to court which is likely to result in a fine or (rarely) a prison sentence.

Bloggers and newspapers might publicise this further
Again, in parallel, there will probably be some blogging and possibly mainstream news articles about this which can damage search results (when people look for information or a company website they will find information pointing out that the company has been making misleading claims).

'Using' the ASA
To say that Simon Singh and the Nightingale Collaboration 'use' the ASA is a bit silly, since that is the body that deals specifically with misleading consumer advertising. Though on a much smaller scale you could also say that I 'use' the ASA to persuade marketers to make their claims more reasonable.

In some cases I report people to Trading Standards, sometimes to the Medicines and Healthcare Regulatory Authority. More recently I have reported some marketers to the CHNC (Complementary and Natural Healthcare Council) for misleading claims, where that marketer is registered with that professional body. The CHNC has suggested that its members should follow ASA / CAP guidelines.

Credit where it's due
Simon Perry devised the Fishbarrel tool which is a plugin for Chrome. However if readers of the Nightingale Collaboration's newsletter want to take part in a particular claim they rarely submit complaints to the ASA precisely for the reason of not swamping them. The Nightingale Collaboration usually asks readers to share relevant examples with them, and then they submit a master complaint - this is more efficient.

Don't get bogged down with just evidence - medical governance is important too
The ASA isn't just interested in evidence (robust evidence please, not these feeble little studies that show a small positive effect) but also what types of conditions people are talking about. There are a number of serious conditions that require the care of appropriately qualified doctors and if a website or leaflet is claiming to treat people with those conditions, but doesn't have a doctor on-site, then this is problematic - irrespective of the quality of any evidence.

Be careful what you wish for
Dismantling the ASA will not stop bloggers from reporting misleading trading claims to Trading Standards or other regulatory agencies. It also won't stop them writing about misleading claims, and in terms of search engine results that may be the bigger problem for those who rely on online reputation. I certainly can't imagine things would be much better for sellers of alternative medicine if the government began regulating it directly.