Homeopathy, celebrities and advertising II: the ASA loophole?

Following my recent flagging of the British Homeopathic Association’s ridiculous ‘Celebrity Photography Project’, I cracked on and brought this to the attention of the Advertising Standards Authority:

I understand that the ASA is currently not seeking further complaints about homeopathy, and that it is conducting an ongoing monitoring process. However, I have read its letter to homeopathy website holders subjected to complaint, the addressees of which, one might presume, included the British Homeopathic Association. However, this letter was sent last year. I am concerned that the BHA’s recent (last two months) ‘Celebrity Photography Project’ may have therefore gone unnoticed.

This project promotes homeopathy, and homeopathy products – with reference to specific health conditions – under the guise of an ‘Awareness Campaign.’ However, aside from the deployment of famous people as endorsement, their statements are tantamount to patient testimonials, which imply or claim, directly or indirectly, that homeopathy and homeopathy products can diagnose/treat/help health conditions. As outlined in the ASA letter, such statements would appear to be in contravention of the CAP Code. The ASA letter states ‘… that testimonials from patients… that imply efficacy for homeopathic treatment do not constitute substantiation but may give a misleading impression that efficacy is proven.’ However, these celebrity testimonials appear to do just that, and certainly go beyond ‘general references to an improved sense of wellbeing.’

These statements might be defended on the grounds that they are the ‘genuine opinions’ of those making them, and not ‘generally held belief’… The BHA… may not directly offer homeopathy consultations or products. However, it does represent and promote… homeopaths who do. That it is celebrities making these individual statements does not legitimise. Neither does the information that they were not paid for contributing. This ‘Celebrities support homeopathy awareness campaign’ is promotion: it makes statement claims lacking objective scientific evidence – …

 

I followed up with more detailed argument:

Further to my recent complaint, I understand that the ASA likely consults the Medicines and Healthcare products Regulatory Agency (MHRA) when considering complaints against the advertising/promotion of homeopathy/homeopathy products. As such, you may have already considered the following information. Nevertheless, I provide here as of potential relevance.

The MHRA provides a list of Homeopathic Registrations:

http://www.mhra.gov.uk/home/groups/pl-a/documents/websiteresources/con126108.pdf

The British Homeopathic Association (BHA) ‘Celebrity Photography Project’ (http://www.celebhomeopathy.com/) names the following products: Aconite, Argent nit, Arnica, Bryonia, Cal Carb, Calendula, Hepar sulph, Hypericum, Phospherous, Pulsatilla, Rhus Tox, Ruta grav, Thuja and Sulphur. These names are either identical, or very similar, to ‘HR’ (Homeopathic Registration) products registered under the 1992 Simplified Scheme, for which ‘indications’ – ie the description of disease/conditions – and medical/therapeutic claims are not allowed. (Arnica may be an exception here, as it is variously listed, also under ‘NR’ products, registered under the 2006 National Rules Scheme, under which ‘indications’ for treatment/relief of minor/mild, self-limiting conditions are allowed. However, it is unclear which Arnica product version the celebrities refer to.)

The celebrities also name plants: cowslip, rhododendrum, chamomile, lavender. These names are not on the MHRA list. Whether these plants are the source of some of the above listed products is not stated (their Latin taxonomic names do not enlighten). Thus it is unclear whether these represent HR or unlicensed products. However, two products named in the BHA ‘Celebrity Photography Project’ – Arum triph and Causticum – do not (as far as I can ascertain from the MHRA list) appear to be licensed.

As well as naming these products, several celebrities… link medical/therapeutic claims of named products for treating specific health/disease conditions. For example, Louise Jameson makes several links. Annabel Croft links sore throats/coughs to Pulsatilla; Susan Hampshire links skin (conditions?) to Hypericum and Calendula; Peter Hain links bruising and arnica (however, it is unclear whether this is HR or NR Arnica). Most notably is Lauren Vaknine’s discussion of her Rheumatoid Arthritis, which contains pseudoscientific statements and contradictions on a serious condition. Although it may be argued that her words do not directly link the products she names to her disease, it is highly likely (and I would argue intended) that anybody would read her as linking them. And for the named plants: David Bellamy links eczema to cowslip; Debbie Moore links (stiff?) joints to rhododendron; and Jo Wood links tension headaches to lavender. Thus, they appear to make indications, which are disallowed, regardless of whether these refer to licensed or unlicensed products.

The MHRA also has guidelines that prohibit celebrity endorsement. According to Chap. 5.7 (p. 27); and Appendix 2 Annex 1C (p. 86) here:

http://www.mhra.gov.uk/home/groups/pl-a/documents/publication/con2022589.pdf

‘Advertising to the public must not contain material which refers to … recommendations by celebrities who, because of their celebrity, could encourage the consumption of medicinal products’

Thus, the BHA ‘Celebrity Photography Project’ also appears to be contravening MHRA rules on celebrity endorsement. Although, as these refer specifically to ‘advertising’ and not ‘promotion’, the BHA may deem them irrelevant. However, although the BHA might argue that it is itself not selling these products, and thus it cannot be ‘advertising’ them, it is nevertheless a body that represents and promotes homeopaths and homeopathy.

It is apparent that these celebrity testimonials… imply ‘indications’ for these products, the majority of which are listed as registered under the MHRA Simplified Scheme (which prohibits indications). Even if the BHA was to deny direct indications, can it argue that they do not make indirect links from conditions to products? Clearly, these celebrity patient testimonials at least imply efficacy for (unsubstantiated) homeopathic treatments, and may give misleading impression that efficacy is proven. This project overall constitutes website content that (at the very least) ‘claims directly or indirectly that homeopathy and homeopathic products can diagnose/treat/help health conditions.’ The CAP Code, as applies to advertisers, ‘… as well as those bodies that represent homeopaths and homeopathy…’…  surely must include, as an organisation that promotes homeopathy, the British Homeopathic Association.

With thanks for your attention,

Yours etc…

 

Although it does state elsewhere on the site that the named and photographed plants (by which I don’t mean the celebrities) are the source of some of the above listed products, it is not clear to me specifically which. But that’s by the by. There are plenty of actual ‘HR’-licensed products and, as such, I deemed it appropriate to also notify the MHRA:

I have complained to the Advertising Standards Authority concerning the British Homeopathic Association’s celebrity endorsement of homeopathy and homeopathy products:

http://www.celebhomeopathy.com/
http://www.britishhomeopathic.org/
http://www.britishhomeopathic.org/media_centre/news/bha_summer_campaign.html

As per the MHRA’s ‘THE BLUE GUIDE – ADVERTISING AND PROMOTION OF MEDICINES IN THE UK’:

‘Advertising to the public must not contain material which refers to … recommendations by celebrities who, because of their celebrity, could encourage the consumption of medicinal products’

It is apparent that these celebrity testimonials…  imply ‘indications’ for these products, the majority of which are listed as registered under the Simplified Scheme (which prohibits indications). Moreover, two products named, Arum triph and Causticum, do not (as far as I can ascertain) appear to be licensed.

Although the British Homeopathic Association might argue that it is itself not selling these products, thus it cannot be ‘advertising’ them, it is a body that represents and promotes homeopathy. As such… it also appears to be contravening MHRA rules on celebrity endorsement.

With thanks for your time, etc…

 

This engendered a quick response from the MHRA:

‘Thank you for this enquiry.

We have had a quick look at the websites referred to in your complaint.

They appear to be promoting homeopathy in general rather than any specific homeopathic medicinal product. They would therefore fall outside the remit of the MHRA who regulate the advertising of medicinal products.

The Advertising Standards Authority has a more general remit to regulate advertising that would include the promotion of homeopathy services. I see you have already complained to them.

Thank you for your interest.’

 

A ‘quick look’?! Well don’t bust a gut, will yers?

I replied thus:

Thank you for your e-mail.

I understand that this is perhaps more of an ASA matter. And I understand your reasoning… May I respectfully draw your attention to the further information and argument I sent to the ASA yesterday, which I’ve copied below.

As well as copying that second communiqué to the ASA (as above), I additionally sent the MHRA the following:

Further to my last… the ‘remedies’ mentioned on the BHA ‘Celebrity Photography Project’:

1) have initial capitals (making them look like specific product names, rather than generic);

2) the names of the remedies are identical to those registered with the MHRA and as advertised and sold by homeopathic manufacturers (eg Nelsons).

This must be an important consideration – a member of the lay public is unlikely to differentiate between a generic product and a specific homeopathic medicinal product if they have identical names.

I thus respectfully ask you to take a longer look at the BHA ‘Celebrity Photography Project’ site.

With thanks and regards, etc…

 

I have yet to hear again from the MHRA.

However, I did receive a letter in the post from the ASA, which I reproduce here:

‘Thank you for contacting us.

We have assessed the webpage you drew to our attention, but I’m afraid we are unable to help in this case.

Our online remit extends to marketing claims that are directly connected with the supply or transfer of goods, services, opportunities and gifts. While I appreciate why you would question the advertiser’s claims in this example, they are not directly connected to any particular service and are therefore outside the terms of our reference. I note your comment that the BHA represents and promotes homeopathy generally, but this would not be sufficient to bring the statements into the ASA’s remit, unfortunately.

You may wish to draw your concerns to BHA directly and, in the absence of a satisfactory response, the Citizen’s Advice consumer service might be able to offer guidance on any further options available to you…….

Although we won’t pursue the matter further, we would like to thank you for raising your concerns with us….’

 

Although to some extent predictable and expected, this is nevertheless very disappointing. (Contact the BHA? Well, I have – though I expect neither response nor effect any time soon). Well, being affronted, and considering it warranted in pointing out that this rejection statement seemingly contradicts the ASA’s own letter as sent to ‘… advertisers… as well as those bodies that represent homeopaths and homeopathy…’, I rattled off a tetchy e-mail:

Thank you for your letter dated 29 August 2012.

The ASA letter to which I referred indicates that the ASA remit extends to ‘… those bodies that represent homeopaths and homeopathy in the UK…’, which must surely encapsulate the British Homeopathic Association. It is clear from the BHA website that they resent the ASA’s imposition on its and homeopaths’ activities. Although it does not itself (as far as I am aware) supply products and services, it represents – and promotes on behalf of – those who do. As the latter can no longer legitimately advertise, the BHA is exploiting a loophole, in that – through patient testimonials in the guise of an awareness-raising ‘Celebrity Photography Project’ – it is, in effect, indirectly promoting homeopaths/homeopathic product providers who are covered by the ASA remit.

From the ASA letter:

‘Claims you cannot make

You must remove any content from your website that claims directly or indirectly that homeopathy and homeopathic products can diagnose/treat/help health conditions.’

And further:

‘Please note that testimonials from patients (which must be genuine) that imply efficacy for homeopathic treatment do not constitute substantiation but may give a misleading impression that efficacy is proven. Therefore it is essential that any testimonials also only make general references to an improved sense of well-being.’

May I further point out that the BHA ‘Celebrity Photography Project’… is actually a collection of famous patient testimonials. Please note that the ‘remedies’ mentioned…

 

… and I continued with relevant information as previously supplied to the MHRA (as above).

Lo and behold, a quick response, which I read as acknowledging that I do perhaps have a point:

‘Thanks for your e-mail this morning.

It’s correct to say that the ASA’s remit could extend to bodies associated with homeopathy as our letter outlined, but we shouldn’t assume from this that the ASA regulates website content per se. Our online remit extends only to marketing claims which are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of a marketer’s own fund-raising activities. I attach a paper from the Committee of Advertising Practice (CAP) issued at the time of the digital remit extension, which perhaps explains the position more clearly.

We always assess cases on their individual merit and remit decisions such as this are often tricky. In this case, we did carefully consider the remit position prior to my original response.

Given your concern about some of the remedies you mentioned and celebrity endorsement, you may wish to approach the MHRA directly for a view.’

 

The attached paper, ‘Extending the Digital Remit of the CAP Code’, indeed states that, since 1 March 2011, the CAP Code will apply to:

‘Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.’

 

But this is not how the ASA letter sent to ‘… those bodies that represent homeopaths and homeopathy in the UK…’ reads. My (perhaps prickly) retort:

Thank you for your reply.

I do not assume ‘… that the ASA regulates website content per se.’

But your online remit does not extend only to direct claims. The ASA letter – to websites promoting ‘a service and/or products to UK consumers, the claims that appear on it constitute marketing communications as defined by the CAP Code’ – emphasises:

‘Claims you cannot make

You must remove any content from your website that claims directly or indirectly that homeopathy and homeopathic products can diagnose/treat/help health conditions.’

This is precisely what the BHA is doing – presumably laughing to itself at the loophole the ASA has overlooked. It is not ‘tricky’; it is glaringly obvious. Homeopathic products are prohibited from being promoted/advertised and displayed with ‘indications.’ How is it, then, that indications celebrity-quoted by the BHA are permissible?

I have also communicated to the MHRA on this. The only response I’ve yet received refers to the ASA.

 

The response confirms I am by now proverbially banging my head:

‘I assure you that our online remit does extend only to marketing claims which are directly connected with the supply or transfer of goods, services, opportunities and gifts as outlined in the paper I attached for you yesterday. Once that initial assessment has been made, and a claim found to be ‘directly connected’ as outlined in the definition, we would continue with an assessment of the content of the claim – if a health claim is made within a statement for any therapy that is ‘directly connected’, a very high level of substantiation would be required before that claim would be acceptable. In this example, the first hurdle has not been passed, because the claims are not directly connected with the supply or transfer of goods etc.’

 

That paper, which also states in 5. ANNEX III:

‘These definitions apply to the code:

g. a marketer includes an advertiser, promoter or direct marketer’

(my emphasis in bold).

 

From the BHA website:

‘The British Homeopathic Association exists to promote homeopathy practised by doctors and other healthcare professionals.’

(My emphasis in bold.)

 

I belligerently persevered:

Thank you for your continued dialogue on this matter.

I note your reference to the CAP paper (5. ANNEX: III These definitions apply to the code: g. a marketer includes an advertiser, promoter or direct marketer).

Why, then, was the ASA letter sent also to ‘… those bodies that represent homeopaths and homeopathy in the UK…’? Did these include the BHA?

The BHA promotes and represents homeopathy and homeopaths (it provides a facility to search for them). Was the letter sent to such bodies in order to compel them to ensure their ‘members’ conform to the ASA’s Code? How then, can they then be allowed to flout the Code themselves?

And:

Is there specific reason for this apparent ‘loophole’, which prevents holding the BHA to account, even though it promotes whilst not directly providing service/products?

 

I am reminded that my points are not being considered any further. The ASA is adamant that this complaint does not come under its remit. However, that does not negate exposing the fallacious resort to celebrity ‘authoritativeness’ on the claims made in the BHA’s ‘Celebrity Photography Project’. Just that the ASA won’t go after those claims because of their virtual whereabouts. So much for acting in the public interest.

What we have here, in effect, is a situation wherein, if you provide certain dubious products and/or services, but are barred from making claims as to their efficacy, you can happily watch your representative umbrella organisation, which does not itself directly supply those products/services, make those claims indirectly on your behalf. Hence this permitted proxy-promotion of indication-prohibited, homeopathy products through a bunch of docile celebrities. A snakeoil-lubricated loophole.

 

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