Hello
You might have received a message from me asking for some evidence for a claim you've made in your marketing material. My request might have taken you by surprise and you might be rather annoyed to be challenged in this way. I expect I would be a bit surprised if someone contacted me too, so I've written this post to try and explain what it is that I'm trying to do.
I regularly report what I
believe to be misleading marketing claims to the Advertising Standards
Authority. Many (by no means all) have resulted in an adjudication being
upheld against the marketer with the details listed on the ASA's website. In fact even if the case doesn't get as far as an adjudication (usually because the marketer agrees to the ASA's request to amend the claims) the marketer's trading name will
still appear on the ASA's pages in the 'informally resolved' section.
It seemed like a good idea, in terms of saving time and effort and avoiding names being listed, for me to try asking people if they will amend their claims
before reporting them to the ASA. If claims are amended then there's nothing to report to the ASA. It may not work of course but I thought I'd give it a go.
The reason I'm asking is that I'm not convinced by the claim(s) that you've made on
Twitter or on your website (or leaflet). The claims are possibly in
breach of the Advertising Standards Authority's (ASA) and Committe for
Advertising Practice's (CAP) advertising codes and it
may be advisable
for you to think about changing your wording.
Please have a look at the
CAP's AdviceOnline database or browse the
Advice Index to search for your treatment to find out what you can say about it in your advertising material. You can also browse this
alphabetic list of therapies for information.
Don't forget that the ASA aren't
just interested in evidence for your claims. If you mention serious conditions or diseases (the sort that anyone would expect to be under the care of a doctor) and you don't have a doctor at your clinic or place of treatment then the ASA may want to know more about this. From previous adjudications they tend to take a dim view of people or companies claiming that they can treat a long 'shopping list' of diseases and they have frequently mentioned their concerns about a website failing to encourage people to visit a doctor for essential treatment. A medical disclaimer is not sufficient to get around this and it is generally inadvisable to say anything that could be understood as you offering to diagnose, treat or cure any disease - unless you have robust evidence.
You
may very well think that I am wrong or that your treatment is
fantastic, and of course I am easy enough to ignore. But if the
evidence doesn't satisfy CAP's requirements for 'robust evidence'
then the ASA may well ask you to amend claims made on your website.
If you decide not to amend your advert (and a
number of people are standing their ground and defying the ASA) then a number of potentially annoying things can happen -
1. Listed on ASA's informally resolved page
Even if you do amend your ad I think your company will probably
still be listed on the 'informally resolved' section of their website. That is what has happened in the past (and precisely why I thought "wouldn't it be great to avoid this by asking people to change their claims before getting the ASA involved?").
2. ASA investigations and adjudications
The ASA might undertake a more formal investigation which can result in an
adjudication. These are listed on individual pages on the ASA's website,
tweeted by the ASA and usually a few others and
occasionally picked up by mainstream media, more frequently by science /
skeptic bloggers. The adjudication may be upheld (against you) or not
upheld (that is, it's actually in your favour) but
either way it's on their website.
3. ASA's list of non-compliant advertisers
If an adjudication is upheld and you still do not amend your website then the ASA may add you to its list of
noncompliant online advertisers.
These events are tweeted by the ASA and by a number of other people. To be
honest it doesn't look good to people who are searching online for
information about your company, though some people seem to treat these citations as a sort
of 'badge of honour', and as proof that the ASA is oppressing
them in some way.
There's also quite a high chance that bloggers
will write about the listing and a low to medium chance that it will be
picked up by the mainstream press. The ASA also do proactive press work,
speaking on radio as well as being invited to comment in written pieces too.
The
ASA can take further action against you though. They can take out an
advert that is critical of your marketing claims, they can also work
with search engines to remove your paid-for advertising. Their
adjudications seem to feature prominently in search results too.
Although
the ASA has no legal sanction over you itself (that I'm aware of) their
activities and the follow-on results of those (including blogging), might damage your
reputation online.
4. Trading Standards, courts, fines, trading restrictions
The most annoying thing that the
ASA can do though is refer you to Trading Standards. Because there are
trading laws and acts in place Trading Standards can use the power of a
court to stop you trading, or fine you for continuing to make misleading
claims (ie trading unfairly). If you are making claims about curing
cancer then you are probably also in breach of the Cancer Act of 1939.
It is likely that you will get a fine and nothing more, though if you
continue I think the next fine will be larger and I believe that after
that (certainly in the case of the Cancer Act) you may be looking at a
prison sentence. These are
definitely picked up by the mainstream press,
bloggers etc.
The ASA recently announced that they'd strengthened the processes involved in working with Trading Standards:
Trading Standards becomes ASA’s legal backstop power (21 November 2013).
See also
- Asking for evidence when companies make misleading claims - but whom should we ask? #askforevidence (22 September 2013)
This post is basically me deciding not to ask people first, because it's never gone down well in the past! However on reflection while there are certainly cases that I'll just report directly I still want to try out a bit of negotiation first.
Here's a bit of what I wrote there -
"A question for fellow skeptic bloggers / activists... and perhaps for 'quacks'
I've always thought that it would seem to be a kindness to give a
company an opportunity to avoid a citation on the ASA's website by
seeing if it's possible to resolve the misleading claims before
snitching on them.
However I'm yet to find the right way to do this - and wondered if
anyone had any ideas or if we've all agreed to just get on and report
it. I wonder if people who are (let's charitably assume they're doing it
unwittingly) making misleading claims would rather skeptics 'had a
quiet word' before bringing things to the ASA's attention.
I've tried face to face, telephone conversations and emails but
unfortunately there doesn't seem to be a way of communicating to someone
that their advert is misleading without getting their hackles up. Or if
there is I've not managed it (and I'm always Britishly polite about it
even if they aren't).
Worse, I feel that I do have to tell them that if they don't change the
advert I'm going to report it to the ASA and that just sounds
threatening. So, much as I'd like to, I'm afraid I don't bother with the
preliminaries and just report the misleading claims."
Disclaimer
It's a bit tedious when people assume that anyone who reports misleading health claims is a secret member of some group of people paid by 'Big Pharma', rather than someone who is simply a bit annoyed to see potentially dangerous claims made on the back of poor quality evidence. However I am happy to state that I do not receive any money or other benefits from the pharmaceutical industry either directly or indirectly, nor do I have any stocks and shares in any of the pharmaceutical industries.
I am not a member of the Nightingale Collaboration (no-one is, they do not have members, though I do read their newsletter and am supportive of their aims and sometimes their campaigns). I am not a member of Sense About Science (don't think they have members either) but I have donated money to them and will happily do so again - not large amounts of money either.
My interest in taking action on misleading claims arose from reading Ben Goldacre's Bad Science Guardian column, his blog and the forum he created and coincided with hearing about crazy adverts for diabetes cures when I used to work at the health charity Diabetes UK. As part of my (then) job I received a number of enquiries from people who'd come across miracle cures and wanted to know more about them. I wanted to know how it was possible that such claims could be made, discovered that they couldn't and began reporting them.
You might also argue that there are more important things to worry about, however I might well be worried about them too, or I might not - it's not actually relevant. I do worry that the pharmaceutical industry has not been transparent about the effects of drugs and I have signed the
#AllTrials petition to make it harder for them to keep hidden what they want to keep hidden. It would be great if you did the same. The petition comes from Sense About Science, Ben Goldacre and others that you might not approve of - however the aim of the petition is to make Big Pharma publish ALL of its clinical trial data and not just the bits they like. I think we'd all agree that that's a good idea even if you don't like who's calling for it to happen. Hope so.
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