Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website www.mecureclinic.com, which offered to cure Chronic Fatigue Syndrome, featured text which stated "At Last, A Major Breakthrough ... Your Chronic Fatigue Syndrome (CFS), also known as Myalgic Encephalomyeltis [sic] (ME) Can Now Be Cured! Welcome to the ME Clinic, specialists, in the elimination of ME/CFS Read about the Unique ME Cure Clinic Money Back Guarantee below It's true, your ME/CFS no longer have to be endured or managed. Due to a major breakthrough in the treatment of ME / CFS by the Bedford based ME Clinic, it is now possible to completely cure these skin conditions in a pain-free, needle-free and drug-free way once and for all. The ME Clinic Treatment Programme ™ has been running successfully for well over 3 years and over and over again has proved its undoubted effectiveness".
Further text beneath the sub-heading "Two Simple Steps To ME / CFS Elimination" stated "The end result is a guaranteed return to full health with no more fears of your skin flaring up or becoming so itchy that you just want to scratch and scrape it till it bleeds. You no longer have to use ineffectual steroid creams that cause so much long term damage to your skin; no more worries about being stared at and so not venturing out; and an end to the constant fear of the next ME / CFS flare up. Significant Improvement within 2 months or YOUR MONEY BACK!"
The ad included a text box, which featured the text "The ME Clinic Guarantee Significant Improvement within 2 months or YOUR MONEY BACK* Probably the most startling element about the ME Clinic programme is the fact that we are so confident of our success, we promise that if the ME Cure Clinic Treatment programme has not been able to significantly improve your condition within two months we will refund the cost of your treatment in full!" A text box, with a red background featured text that stated "100% MONEY BACK GUARANTEE".
Further text stated "There really is no reason to hesitate, the ME Clinic Treatment Programme is a tried and tested, safe, natural route back to full health. And, since you are guaranteed your money back if the treatment doesn't work for you, you really have nothing to lose ... and everything to gain".
Issue
The complainant challenged whether:
1. the claims that the advertiser could cure ME were misleading and could be substantiated, because they understood there was no known cure for ME; and
2. the references to the money back guarantee misleadingly implied the advertiser guaranteed a cure for ME, because they understood the guarantee related to improvements by the advertisers' own measures rather than a cure.
Response
Kaizen Clinic Ltd t/a the ME Cure Clnic (ME Cure Clinic) offered to make a number of amendments to the ad. However, we considered those amendments were not sufficient to resolve the complaint.
Assessment
1. Upheld
The ASA noted the ad offered "The ME Cure Clinic Treatment Programme" and made multiple references to the ability of the treatment to cure ME. We also considered the references to the advertiser's name, the ME Cure Clinic, implied efficacy of the programme. In the absence of robust documentary evidence to demonstrate that the programme could cure ME, we concluded that the efficacy claims had not been substantiated and therefore breached the Code.
On this point, 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),
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) 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.
and
12.6
12.6
Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
(Medicines, medical devices, health-related products and beauty products).
2. Upheld
The ad stated "The ME Clinic Guarantee Significant Improvement within 2 months" and "we are so confident of our success, we promise that if the ME Cure Clinic Treatment programme has not been able to significantly improve your condition within two months we will refund the cost of your treatment in full!". In conjunction with the further claims that the treatment could cure ME, we considered consumers would understand the references to the guarantee implied that the treatment guaranteed a cure for ME. Because we had not seen robust documentary to demonstrate that, we concluded that the references to the money back guarantee were likely to mislead.
On this point, 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),
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) 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.
and
12.6
12.6
Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
(Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told the ME Cure Clinic to ensure efficacy claims were capable of robust substantiation in future. We also told them not to imply that they guaranteed a cure for ME, if they did not hold robust documentary evidence to demonstrate that.
