Background
Summary of Council decision:
Eight issues were investigated, all of which were Upheld.
Ad description
The website www.mymobilityshop.co.uk stated "GENUINE Circulation Maxx Ultra Foot Massager with 30 DAY FREE TRIAL - CMU". An image of the packaging included the claim "AS SEEN ON TV".
Text under the heading "Description" stated "You can't purchase a more powerful or advanced E.M.S medically certified device. Circulation Maxx Ultra has the potential to increase blood flow after prolonged sitting and reduce swelling, blood pooling and discomfort in lower limbs in healthy individuals. May reduce swelling in the ankles and improve lower leg blood circulation in healthy individuals that are seated or inactive for long periods of time. The Circulation Maxx Ultra gently massages your feet to help revitalise, refresh and rejuvenate your legs and feet. With the added benefit of TENS technology you can also target minor aches and pains accurately, with the re-usable hypoallergenic gel pads, that are easily applied to legs, hips, back or arms. You can't purchase a more powerful or advanced E.M.S medically certified device. 3 times the intensity of this basic entry model with a remote control and additional health programmes ... May Help Improve Blood Circulation* - Clinically Tested TENs Treatment - Reduces Pain In the Legs And Feet*".
Text under the heading "How It Works" stated "Electronic Nerve Stimulation is a non-invasive, safe nerve stimulation intended to reduce pain. The Circulation Maxx Ultra uses proven neuromuscular electrical stimulation therapy to send micro current pulses through the soles of your feet. This type of electrical stimulation is clinically proven to be safe and effective and can be carried out in the comfort of your own home. The Circulation Maxx Ultra can improve muscle function by stimulating nerves increasing the flow of blood helping to reduce Pain, Swelling, Tired & Aching Legs".
Issue
Actegy Ltd challenged whether the following claims were misleading and could be substantiated:
1. "As seen on TV", because they did not believe that the product had been advertised on TV;
2. "You can't purchase a more powerful or advanced E.M.S medically certified device", because they believed that this was a comparative claim which the advertiser could not substantiate;
3. "Circulation Maxx Ultra has the potential to increase blood flow after prolonged sitting and reduce swelling, blood pooling and discomfort in lower limbs in healthy individuals", because they believed that it implied that the device would alleviate the symptoms of chronic conditions;
4. "May reduce swelling in the ankles and improve lower leg blood circulation in healthy individuals that are seated or inactive for long periods of time", because they believed that it implied that the device would alleviate the symptoms of chronic conditions;
5. "Clinically tested TENs treatment", because they did not believe that the product's TENs technology had been specifically clinically tested;
6. "May help improve blood circulation*", because they believed that it implied that the device would alleviate the symptoms of chronic conditions;
7. "Reduces pain in the legs and feet*", because they believed that it implied that the device would alleviate the symptoms of chronic conditions; and
8. "The Circulation Maxx Ultra can improve muscle function by stimulating nerves increasing the flow of blood helping to reduce Pain, Swelling, Tired & Aching Legs", because they believed that it implied that the device would alleviate the symptoms of chronic conditions.
Response
mymobilityshop.co.uk did not respond to the ASA's enquiries.
Assessment
The ASA was concerned by mymobilityshop.co.uk's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and we told them to do so in future.
1., 2., 3., 4., 5., 6., 7. & 8. Upheld
mymobilityshop.co.uk had not supplied evidence to substantiate the claims. Because of that, we concluded that they were misleading and in breach of the Code.
On point 1., the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
On point 2., the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors),
3.38
3.38
Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage.
(Other comparisons) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
On points 3., 4., 5., 6., 7. and 8. the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
Action
The claims must not appear again in their current form. We referred the matter to CAP's Compliance team.
CAP Code (Edition 12)
12.1 3.1 3.11 3.3 3.33 3.38 3.7
