Who: Boots UK Ltd (“Boots”), Philips Electronics UK Ltd (“Philips”) and the Advertising Standards Authority (“ASA”)
When: 29 October 2014
Where: UK
Law stated as at: 4 November 2014
What happened:
As we all know, Boots stocks a range of products manufactured by third party companies. When selling these on its website, the item description is often provided by the manufacturer. One such product, the Philips PR3092/00 BlueTouch Pain Relief Patch, ironically ended up being somewhat of a pain for Boots after the ASA looked into some of the claims made about it on the www.boots.com website. Outlined below are the various claims made, the responses made against these claims, and the ASA’s decision on whether the claims breached the UK non-broadcast advertising rules, the CAP code. Although Boots was the party against which the claims were brought, Philips responded to the objections on Boots’ behalf.
Natural
The product claimed that it “offers a natural, drug-free way to treat back pain”, however the complainants challenged whether the reference to “natural” was misleading. Although Philips argued that the product emitted warmth and blue light, both of which occur naturally – the wavelength of blue light is part of natural sunlight – and which help aid pain relief, the ASA concluded that consumers would expect a “natural” remedy to be based on a product or ingredient which had not been manufactured. As the light was artificially produced, it was deemed unlikely to be seen as akin to the unaltered spectrum of sunlight, and as such, was not “natural” in the true sense.
Painkilling claims
The BlueTouch Pain Relief Patch claimed that it “treats the symptoms of musculoskeletal back pain” and “aids recovery and repair of damaged muscles”. Philips claimed that the blue light triggers the release of nitric oxide in the skin which, in turn, increases local blood flow to deeper tissue layers, assisting with pain relief and recovery.
To substantiate this claim Philips provided in-vitro and non-human studies and online encyclopaedia entries on the action of nitric oxide as well as evidence from its own study conducted on volunteers with chronic mild to moderate musculoskeletal back pain.
Given that the ad focussed on the blue light technology more than the benefits of heat or warmth (which the product also provided), the ASA considered that consumers were likely to understand the painkilling claims to be linked to the blue light as the primary mode of pain relief.
The evidence linking blue light technology to nitric oxide and the associated benefits was viewed by the ASA as somewhat abstract and, rather crucially, it noted that in-vitro studies, animal studies and online encyclopaedia entries failed to amount to suitable evidence to support claims made for a device which is used by humans. The ASA highlighted that evidence for such claims should be based on the effect on human subjects.
Although part of Philips’ supporting materials contained details of its own human study, the fact that it had not been published and so had not been peer reviewed, undermined its authority and, in any event, the difference in pain relief between those who used the product and those who did not was not statistically significant. As such, the ASA judged that Philips was unable to substantiate the alleged painkilling capabilities of the BlueTouch patch, and so these claims were deemed misleading.
Stimulating the body’s healing processes
The Boots website purported that the device “stimulates the body’s natural healing processes”, another claim challenged by the complainants. While Philips admitted that there were many potential causes of back pain, and therefore various remedies, it stressed that the production of nitric oxide was vital in many of these. However, the manufacturer failed to produce evidence to show that the patch initiated the production of nitric oxide over and above that which the human body could be expected to produce unaided. As such, it could not be proved that the product would stimulate and speed up the body’s natural healing processes.
Did the product really use “clinically proven technology”?
The final objection was in relation to the claim that the device used “clinically proven technology”. Philips again highlighted that it had conducted clinical human trials showing that the patch was effective against mild to moderate musculoskeletal back pain. However, because these trails failed to provide a sound body of evidence that the device was effective in the majority of cases and, in cases where the device did have an impact, it was not particularly superior in terms of pain relief, the ASA also deemed this claim to be misleading.
Why this matters:
Health sector advertising is an area which the ASA and CAP clearly view as important, with surveys and numerous help notes and guidance having previously been issued on the topic. This judgment focussed on health claims relating to the benefits of a device (as opposed to medicines or supplements), but the main lesson remains the same: marketers, manufacturers and retailers alike should be wary of making health claims unless such claims can be fully substantiated.
The particularly noteworthy points from this ruling are as follows:
• products which are claimed to be “natural” should be based on products or ingredients that have not been manufactured – even if the end product exists naturally, if it has been heavily synthesised for the purposes of the product or device, it runs the risk of not being considered “natural”;
• non-human studies may not be sufficient evidence to support claims made for products which are to be used by humans; and
• the weight given by the ASA to human trials is likely to be minimised if the trails remain unpublished (and are therefore not subject to scrutiny from external experts in the field).
