Who: The Advertising Standards Authority (ASA) and Nexusbird Inc t/a Motion
Where: United Kingdom
When: 18 October 2023
Law stated as at: 3 November 2023
What happened:
Motion is a company (primarily based in the USA) that offers an artificial intelligence (AI)-controlled calendar. In May 2023, a paid-for social media advert was seen to be advertising Motion, featuring aspects such as:
- A video featuring a text message exchange between two people discussing deadlines and claims such as “my ADHD brain doesn’t know what to prioritize”, “It’s [Motion’s] the best way to get organized when you have ADHD“.
- The caption: “There’s a new way to get 25% more done”.
- A reference in the video that Motion was “the best way to get organized [sic] when you have ADHD” and that Motion was “the only way I was able to get a promotion!”.
The ASA upheld the complaints on the advertisement above, which must not appear again in its current form. This was based on the following considerations.
Medical claims can only be made in relation to registered medical devices
The ASA acknowledged that Motion’s intention in the advert was to highlight the ways in which their app could help various people, including those with ADHD (attention deficit hyperactivity disorder). However, the ASA considered that the statements in Motion’s advertisement implied that Motion could help individuals with ADHD to manage, reduce, alleviate and ultimately treat certain symptoms relating to ADHD. These statements were therefore considered to be “medical claims”.
However, the ASA noted that Motion’s app was not registered as a medical device with the Medicines & Healthcare products Regulatory Agency (MHRA) and did not have the applicable conformity marking. Therefore, these statements were not permitted for an app which was not a medical device and breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) in relation to rules 1.10 and 12.1.
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought
The ASA held that marketers must not offer specific advice on diagnosis of or treatment for such conditions, unless that advice, diagnosis or treatment was conducted under the supervision of a suitably qualified medical professional. The ASA confirmed that they considered ADHD to be a condition for which medical supervision should be sought. However, the ASA did not receive any evidence to demonstrate that Motion’s app was being used by individuals with ADHD under the supervision of a suitably qualified medical professional. The ASA therefore considered that the advert breached the CAP Code in relation to rule 12.2.
Why this matters:
The ASA continues to take a strict approach to the adverts which contain medical claims, particularly in relation to products that are not registered as medical devices.
This ruling serves a few interesting points.
Firstly, Motion responded to the ASA and raised that they were primarily based in the US, with less than 10% of their users based in the UK, and Motion did not target users in the UK. The ASA did not comment on this point but the existence of the mere ruling makes it clear that the ASA disagreed that the ad was out of the ASA’s remit.
This is a good reminder that the ASA does not look favourably on arguments that their advertising simply does not target UK consumers and that the bar for demonstrating this is consequently high.
Secondly, although again not really discussed in the decision it is implicit in the ruling that the ASA takes the view that ADHD is a medical condition. The definition of a medical condition is very wide, and this ruling is an illustration that it can catch things that would not immediately be obvious as medical conditions or things that some people would typically not consider to be medical conditions.
Finally, it is a timely reminder that the rules around medical claims are very strict. Manufacturers should not advertise the ability of their products to treat or alleviate health conditions unless the product is registered as a medical device with the MHRA. Additionally, products should not be advertised in place of or discourage consumers to seek advice from suitably qualified medical professionals.
