Who: Advertising Standards Authority (“ASA”). Pranamat Sales & Marketing SIA t/a Pranamat ECO (“Pranamat”)
Where: United Kingdom
When: 30 March 2016
Law stated as at: 7 April 2016
The ASA investigated two online ads for Pranamat acupressure mats (the “Mat”).
The first ad was on the Pranamat website (www.pranamat .com) and made various claims that the Mat reduced muscle and back pain, including the statement, “Certified and clinically tested to meet your needs”.
The second ad for the Mat was on amazon.co.uk, although the Mat was sold by Pranamat. The ad featured text stating that, “Pranamat Eco can release endorphins that help to … relieve stress, reduce headache and back pain and improve circulation.”
The challenge centred around whether Pranamat was making medical claims about a device which was not CE marked and the use of “certified” in the first ad misleadingly implied that the product was CE certified. In the EU, CE marking shows that a manufacturer has checked that the product meets EU health requirements and indicates compliance with EU legislation.
The ASA upheld this complaint. It stated that Pranamat was making medicinal claims in the ads. Medicinal claims can only be made for products that are licensed by the MHRA or the European Medicines Agency or for a CE-marked medical device. Pranamat had not provided any evidence that the Mat was either a CE-marked medical device or licensed as a medical device by an appropriate authority.
The ASA also held that the use of “certified” in the first ad suggested that the Mat was CE-marked medicinal claim.
The ASA therefore held that the ads breach the CAP Code.
Why did it assume jurisdiction?
Pranamat argued they did not promote their website in the UK and that the ASA therefore had no jurisdiction.
Since 1 March 2011 the ASA has regulated advertisers’ own marketing communications on their own websites. In this instance, the ASA held that the Pranamat website was accessible from the UK and it allowed British residents to purchase the Mats in British pounds sterling. On this basis the ASA felt it was able to assume jurisdiction for the communications complained of and the advertising had to comply with the CAP Code.
The position on the ASA’s jurisdiction is set out in the “Scope” section of the CAP Code. This states that direct marketing communications, sales promotions and marketing communications on non-UK websites are subject to the jurisdiction of the authority where the communication originated, even if they target UK consumers.
This is provided that the local regulatory authority operates a suitable cross-border complaint system. This will be the case if the authority is a member of the European Advertising Standards Alliance. The EASA co-ordinates a cross-border complaint handling system for its members.
There is no Latvian equivalent of the ASA listed as a member of the EASA, so although the ASA decision in this case does not spell it out, presumably the ASA proceeded with its own investigation because it was not able to identify any equivalent body in Latvia that was party to a suitable cross-border complaint handling system.
Why this matters:
This ruling underlines suggests that the ASA is using its online remit to take action against entities that are not based in the UK, despite the assurance in the “Scope” section of the CAP Code. It appears that as long as the goods are offered to consumers in the UK (e.g. the website is available in the UK and prices are available in sterling), then the ASA may take action.
It will be interesting to see how this increased remit is used once the EU’s proposals to prevent geo-blocking of websites are in force. If more websites are available to consumers, regardless of their location in the EU, then the ASA may argue that most websites actively target UK consumers and come within their remit unless there are credible arrangements in place for the issue to be dealt with effectively by the home regulator.