“Health and Lifestyle Star Buy” shouted a national newspaper ad for Rosehip Vegecaps. Above it an article sang the praises of…Rosehip Vegecaps. Editorial and immune from the CAP Code? Anna Montes shares the regulator’s verdict.
Who: Advertising Standards Authority
When: 19 August 2009
Where: United Kingdom
Law stated as at: 1 September 2009
Goldshield Limited (which trades as "Goldshield Healthcare Direct") and Express Newspapers both found themselves named in an Advertising Standards Authority ("ASA") adjudication. The question of the day was when is newspaper editorial not editorial but a marketing communication? That question was posed when a press ad by Goldshield Healthcare Direct was placed in the Daily Express newspaper and it attracted criticism as to the blur between the editorial on the page and the paid-for ad.
What was ultimately held by the ASA to be all advertising consisted of two parts:
1. The top half of the page took the form of an article about "Goldshield's Rozip", the product being advertised, which included the following statement:
"ANYONE who suffers with joint pain as a symptom of arthritis will know how debilitating this can be and how hard it is to treat effectively with conventional medicines. However, there are supplements on the market that do not require a prescription and which many sufferers claim have brought them some relief. One compound that appears to offer effective pain relief is rosehip, the fruit of the rose bush, which, according to research, can help alleviate joint pain in patients with knee, hip and hand osteoarthritis without any side-effects. Rosehip contains an anti-inflammatory active ingredient called GOPO, which experts now believe can help to keep joints lubricated and pain-free, offering hope to millions of people who suffer from painful joints due to arthritis and related conditions but want to maintain an active life."
The article also referred to a clinical trial which apparently proved that rosehip supplements are nearly three times more effective than paracetamol at reducing pain and the fact that Goldshield ROZIP is specially formulated to contain a pure source of rosehip extract to aid the maintenance of joint health. Such language sounds more like marketing speak that investigative journalism.
2. The bottom half of the page consisted of an order form and an image of a man and a woman smiling next to a rosehip plant and a box of the product. This section of the ad was headlined "HEALTH AND LIFESTYLE STAR BUY. Rose Hip Vegecaps. You may have read recently about the remarkable properties of Rosehip… Now you can experience the benefits in these easy to swallow vegecaps … Goldshield's Rozip is a specially formulated supplement … A traditional remedy (suitable for vegetarians) … One pack of 60 vegecaps is JUST £8.95." The order form was headlined "60 vegecaps only £8.95, 180 Vegecaps only £20.95." and the text at the top of the entire page stated "To advertise in this section O8 XXXXXX".
The issues considered by the ASA
Biocalth (UK) Limited challenged the ad on the basis that arthritis was referred to and this is a medical condition for which medical advice should be sought so the ad contained improper references to the condition. The ASA then added its own complaints to the list and decided to challenge the ad itself as to whether:
- Goldshield Healthcare Direct could substantiate the claim that Goldshield's Rozip could relieve joint pain;
- the claim "Rosehip contains an anti-inflammatory active ingredient called GOPO, which experts now believe can help keep joints lubricated and pain free, offering hope to millions of people who suffer from painful joints due to arthritis and related conditions… Goldshield ROZIP is a specially formulated supplement containing a pure source of rosehip extract" was in fact a medicinal claim and so required marketing authorisation from the Medicines and Healthcare products Regulatory Agency; and
- it was sufficiently clear that the ad was in fact a marketing communication.
The arguments raised in defence
Goldshield Group plc ("Goldshield") issued responses to the issues raised by the ASA and argued that on the whole, the challenged issues did not arise and neither arthritis nor relief from joint pain were referred to.
How could this be so……? Well because Goldshield claimed that their ad consisted of only the bottom half of the page in the Daily Express – not the whole page. It argued that the top part of the page was editorial created by the journalist Alison Coleman, not by Goldshield, whereas the bottom part of the page was the only part that consisted of an ad placed by Goldshield.
Goldshield asserted that it was not responsible for the contents of Ms Coleman's article and she had simply asked Goldshield to provide her with product information on Rozip for an editorial piece. As many companies do, Goldshield had a policy of supporting relevant editorial in the national press by placing adverts, preferably on the day of publication or the next day available. Goldshield asserted that it had only directed Ms Coleman to its industry body and suggested she look on the Internet for information about Goldshield's ROZIP.
The Daily Express was also asked to comment on the matter and in its submissions it was claimed that when Goldshield booked the ad for Rozip it was on the understanding that Ms Coleman's editorial would also appear. While the Express did not receive any payment from Goldshield for the editorial piece, it did receive payment for the ad which it was agreed would appear below the article in question. The Daily Express did make it clear to the ASA in its response that, unlike the case with advertorials, Goldshield had no right to change the content of the article due to appear on the same page and Goldshield was only shown a copy of the editorial article in advance so it could check it for factual inaccuracies.
Was the ASA swayed by such arguments?
Not this time – all four complaints were upheld and the ASA was not persuaded by the arguments raised by Goldshield or the Daily Express. In part, this was because the ASA considered that the top and bottom halves of the Daily Express page concerned were linked in the following ways:
(a) in the top half of the page under Ms Coleman's article, text stated "INFORMATION www.goldshield.co.uk" and the web address www.goldshield.co.uk/rozipw was also repeated at the bottom of the second half of the page, next to a photograph of the product;
(b) text stating "Goldshield's Rozip is a specially formulated supplement" appeared in both the top and bottom parts of the page; and
(c) text at the top right-hand side of the page stated "To advertise in this section O8 XXXXXX firstname.lastname@example.org" which the ASA considered to reflect the page format typical of a traditional direct response press ad.
One of the key deciding factors for the ASA when it considered this case was the fact that there was a conditional relationship between Goldshield and the Daily Express due to the inter-relationship between the top and bottom halves of the page concerned.
The ad booked by Goldshield to appear in the bottom half of the page was booked on the understanding that Ms Coleman's article would appear above it. The ASA therefore believed that because of this reciprocal arrangement, Goldshield did in fact had implicit control over the top half of the page and, as such, Goldshield was responsible for ensuring the contents of the entire page complied with the CAP Code. As the page as a whole did not comply with the CAP Code, Goldshield was held responsible for a range of CAP Code breaches, including those concerning substantiation, truthfulness, health and beauty products and therapies and medicines.
Why this matters:
The ASA wanted to stress to Goldshield that consumers should not be discouraged from seeking essential medical treatment and advertisers should therefore not offer specific advice regarding the diagnosis or treatment of serious or prolonged conditions (such as arthritis in this case), unless it was conducted under the supervision of a doctor or other suitably qualified health professional. The case also acts as a reminder that medicinal claims for health products should not be made unless the marketer has obtained in advance an appropriate marketing authorisation from the Medicines and Healthcare products Regulatory Agency. Furthermore, where medicinal claims are used, marketers should hold scientific evidence for any claim that their vitamin or mineral product or other food supplement is beneficial to health.
Where the set-up of a print ad linked to editorial content is concerned, marketers need to take a step back and consider how their ads may come across to recipients and readers. If, taken as a whole, a page in a newspaper could be considered to constitute a marketing communication, it is therefore subject to the CAP Code and amongst other things should therefore have the words "advertisement feature" or similar clearly displayed at the top of the page or else it could be deemed to be misleading. Perhaps marketers responsible for such ads should also seek prior approval rights over the look and feel and content of the page to appear within the newspaper to check for CAP Code compliance but this is something that paper editors are unlikely to agree to in practice!