Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
The website www.drjin.co.uk promoted a traditional Chinese medicine practitioner. The heading of every page of the website stated "DR JIN Traditional Chinese Medicine". On a web page entitled "Conditions Treated" text stated "Muscular Neurological Skeletal and Vascular ... Arthritis, Joint problems, Back pain, Lumbago (lower back pain), Slipped Nerves, Sciatica, Sprains, Stiff neck, Tennis elbow, Omalgia (Shoulder pain), Frozen shoulder, Tendonitis, Hemiplegia, Neuralgia, Stroke, Sprain, Sports injury, etc. Internal ... Headache, Migraine, Dizziness, Asthma, Chronic bronchitis, Respiratory disorders, Colds & flu, Haemorrhoids, M.E. & Chronic fatigue, Hypertension, Hypoglycemia, Diabetes, Thyroid imbalance, Irritable bowel syndrome etc. Mental Emotional ... Stress, Anxiety, Depression, Panic attack, Insomnia, Palpitations etc. Ear. Nose & Throat Hay fever, Sinusitis, Sore throat, Rhinitis, Tinnitus, Otitis, Halitosis (bad breath) etc. ... Men's Problems Impotence, Hernia, Prostatic diseases, Premature ejaculation, Sex drive problems etc. ... Women's Problems Irregular periods, Pre-menstrual tension, Menopause syndrome, Period pain, infertility etc. ... Other Stop Smoking, Lose Weight etc. ... Health Preservation & Rehabilitation Help prevent the occurrence of illness by maintaining the natural balance of the body. Effective treatment to restore the human body to its optimum stat"..
On the page entitled "Our Staff" text stated "Dr. Zheng Jin (John) TCM Senior Doctor" and listed Dr Jin's qualifications and professional memberships which included "MB. Graduated after five years of professional training from Tianjin University of TCM, China" and "Has 20 years of practical clinical experience, over 40,000 cases, since 1988...".
Text on the page entitled "Treatment process" gave information regarding how the practitioner would diagnose medical conditions and then prescribe the appropriate treatments.
Issue
The complainant challenged whether:
1. the advertisers could substantiate the claims that Chinese medicine could treat the conditions cited;
2. the website misleadingly implied that the practitioner was a medically qualified doctor, registered with the General Medical Council; and
3. the ad was irresponsible as it could discourage consumers from seeking essential treatment for conditions for which medical supervision should be sought.
Response
1. Dr Jin said they had amended the "Conditions Treated" page to include introductory text which stated "Traditional Chinese Medicine (TCM) has been used for thousands of years to help treat or ease the symptoms of all manner of illnesses and injuries, some of which are listed below. Your health is important to us and we always encourage that you engage with your regular G.P. or healthcare provider in conjunction with seeking help through TCM". Dr Jin also stated that considering the subject matter, the large amount of evidence available, and the non-deterministic nature of health treatments, they found it hard to provide evidence to support their claims, especially as the source material would be in multiple languages.
2. They stated that Mr Jin was a medical doctor and supplied copies of his qualifications and corresponding translations from the Notary Public Office of the People's Republic of China, which included a Bachelors degree of Medicine awarded by Tianjin University of Traditional Chinese Medicine in 1993, a "Doctor Qualification Certificate" awarded by the Ministry of Health in 1999, and "Certificate of Doctor Practicing", again awarded by the Ministry of Health in 2001. Dr Jin explained that Tianjin University of TCM was a research university and the programme Mr Jin studied involved both TCM and "Western" allopathic medicine. They said he was a fully credited and certified medical professional and qualified to operate in any Chinese hospital. They highlighted that Mr Jin had worked as a Chief Resident in Tianjin Hospital. They also asserted that Mr Jin was qualified to practise both TCM and allopathic medicine in China. They explained that Mr Jin was not registered with the UK General Medical Council (GMC) because he was not practising allopathic medicine in the UK. They maintained, however, that Mr Jin had the right to use the honorary prefix "Dr" in front of his name.
3. Dr Jin said they had amended the "Conditions Treated" and "Treatment process" pages of the website to include footnote text which stated "Disclaimer: The information provided on this site is for informational purposes only and is not intended as a substitute for advice from your G.P. or regular healthcare professional. You should not use the information on this site for the self diagnosis of treatment of any health problem, or the prescription of any medication or treatment. You should consult with your regular G.P. before undertaking any changes in your healthcare regime or medication. You should not stop taking any current course of medication without first consulting the prescribing physician".
Assessment
1. Upheld
The ASA noted the amendments that Dr Jin had made to the website. We considered, however, that consumers reading the introductory text and the conditions listed would believe that TCM could help to treat those conditions. We noted that Dr Jin had not provided any evidence to substantiate the claims that TCM could treat the ailments listed on the site, and therefore concluded that the claims were misleading and in breach of the Code.
On that point, the claims 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),
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
12.8
12.8
Marketers must hold proof before claiming or implying that a minor addiction or a bad habit can be treated without effort from those suffering.
(Medicines, medical devices, health-related products and beauty products).
2. Upheld
We noted the documents provided and understood that Mr Jin had studied at the Tianjin University of TCM and been awarded a Bachelors degree of Medicine. We noted that that certificate stated that he had studied at the Department of Acupuncture and Moxibustion and majored in Bone Injuries of TCM. We also understood that Mr Jin had been awarded further qualifications from the Ministry of Health of the People's Republic of China which allowed him to practice. We understood, however, that Mr Jin was not registered with the GMC and that Dr Jin did not know whether his qualifications would meet the GMC's criteria to allow him to practise in the UK.
We considered that the repeated use of the prefix "Dr" throughout Dr Jin's website implied that Mr Jin was a medical doctor who was currently registered with the GMC and practising allopathic medicine. Because that was not the case we concluded that the website was misleading and in breach of the CAP Code.
On that point, the claims 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).
3. Upheld
We noted that a number of the conditions listed on the "Conditions Treated" page, including "Arthritis", "Stroke", "Migraine", "Dizziness", "Asthma", "Chronic bronchitis", "Respiratory disorders", "Hypertension", "Diabetes", "Depression", "Impotence", "Prostatic diseases", "Irregular periods", "Menopause syndrome" and "Infertility", were serious medical conditions which should be supervised by a suitably qualified health professional. Because we had not seen evidence that Mr Jin was a practising doctor of allopathic medicine in the UK, and therefore registered with the GMC, we considered that he was not suitably qualified to supervise the treatment of those conditions. We therefore concluded that the references to serious medical conditions could discourage consumers from seeking essential medical treatment.
On that point, the claims 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),
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.
12.2
12.2
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered (see rule
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.
).
Health professionals will be deemed suitably qualified only if they can provide suitable credentials, for example, evidence of: relevant professional expertise or qualifications; systems for regular review of members' skills and competencies and suitable professional indemnity insurance covering all services provided; accreditation by a professional or regulatory body that has systems for dealing with complaints and taking disciplinary action and has registration based on minimum standards for training and qualifications.
and
12.3
12.3
Marketers offering individual treatments, especially those that are physically invasive, may be asked by the media and the ASA to provide full details together with information about those who supervise and administer them. Practitioners must have relevant and recognised qualifications. Marketers should encourage consumers to take independent medical advice before committing themselves to significant treatments, including those that are physically invasive.
(Medicines, medical devices, health-related products and beauty products).
Action
The claims must not appear again in their current form. We told Dr Jin to ensure they did not claim that their practitioners could treat particular medical conditions unless they held robust evidence to substantiate those claims, not to use the prefix "Dr" in their advertising, and to ensure they did not discourage essential treatment for medical conditions for which medical supervision should be sought.
