Who: The Advertising Standards Authority (ASA) and MEP LLC t/a O2HyperHealth
Where: United Kingdom
When: 27 September 2023
Law stated as at: 16 October 2023
What happened:
O2HyperHealth is a provider of hyperbaric oxygen therapy (“HBOT”, where 100% oxygen at greater than atmospheric pressure is provided to patients). O2HyperHealth published various advertisements on their website and a leaflet, both seen in June 2023.
The advertisements included:
- The homepage of the O2HyperHealth website –featuring textthatmentioned that “Hyperbaric Oxygen Therapy is a medically known, safe non-invasive & painless way to promote healing and recovery for users of all ages by saturating the body’s cells with pure oxygen through the use of a pressurized hyperbaric chamber” [own emphasis added].
- A leaflet from O2HyperHealth – mentioning that “HBOT can be effective in treating a variety of acute and chronic conditions”, which suggested that these include conditions such as autism, asthma, migraines and infections related to diabetes.
The ASA upheld the complaints on both of the advertisements above, which must not appear again in their current form. This was based on the following considerations.
1. Marketers must not discourage essential treatment for conditions for which medical supervision should be sought
This is expressly referred to under rule 12.2 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and means that advertisements must not offer specific advice on, diagnosis or treatment for conditions where suitably qualified medical advice should be sought. The list of relevant conditions under the CAP guidance for “Health, beauty, slimming & medical conditions” which are caught by this requirement, include various conditions that were referred to in O2HyperHealth’s advertisement including: asthma, autism, migraine and diabetes.
Based on various references in the advertisements such as “Pills don’t always work adding more medication….can lead to added complications STOP! There is an alternative for all ages” and reference to the claim “HBOT can be effective in treating a variety of acute and chronic conditions”, the ASA considered that consumers would understand that therapy was a viable treatment method which was often superior to those usually used as part of standard medical care. There was also a lack of evidence to demonstrate that any of O2HyperHealth’s treatments were conducted under the supervision of a suitably qualified medical professional.
As a result, these factors reinforced the overall impression that the therapy could treat conditions for which medical supervision should be sought. This was despite subsequent reference in the video (embedded into the website) that made reference to seek medical advice
2. Prefixing an acceptable reference to medical condition with “serious, “chronic”, “persistent” or similar is likely to render it unacceptable
In addition to the above, the leaflet described various issues that would not necessarily amount to medical conditions on their own such as “fatigue” as “chronic conditions“. This had the effect of making consumers think that the product was suitable for treating these conditions when they were sufficiently severe to require medical supervision, meaning they became medical conditions because of how they had been described in the advert.
Finally, the ASA expressly confirmed that evidence relating to the efficacy of a treatment for a serious medical condition was not relevant to the ASA’s consideration of whether claims in an ad breached Code rule 12.2.
Why this matters:
The ASA continues to take a strict approach to the advertisement of non-prescription medicines and therapy treatments. This ruling serves as a reminder to manufacturers that medical products for certain conditions should not be in place of, or discourage consumers to seek advice from suitably qualified medical professionals. Manufacturers should also be mindful that a mere mention to “seek medical advice” is insufficient to mitigate risk in this area, and manufacturers should instead review the entire advertisement for how it may practically be perceived by consumers.
