Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
A magazine ad for the FlexxiCore Passive Exerciser was headed "Enjoy a Whole Body Workout While Putting Your Feet Up!" Further text below stated "You really can enjoy the benefits of a whole body workout while simply lying down and relaxing with your feet up. The FlexxiCore combines the benefits of Continuous Passive Movement (CPM) with the effects of a simple type of exercise machine invented in Japan that swings your feet ... This technique has become known in the West as "passive exercise" - the user is simply lying there, letting the machine generate an elegant wave of oscillating movement from the pelvis upwards. This mobilises the whole of the back without effort or strain ... The FlexxiCore combines the principles of both the Japanese and Canadian techniques, and utilises advanced technology that allows for variable speeds and a smooth ride. It provides a convenient way to enjoy an energising workout while gently mobilising the back - at a fraction of the cost of the specialist CRM equipment used by back care professionals. Research has shown that back pain is very often the result of a chronic inability to relax, both physically and mentally. Research also shows that rocking motion helps to synchronise brain waves and calm the nervous system … For use at home and in clinics Widely used by therapists in clinics ...". Text in a separate box at the bottom of the page included an excerpt from a newspaper article by an osteopath and was headed "An expert reveals the gadgets that really will get you ... back in action". Further text below stated "…If you have even a moderate back problem for more than six weeks, get it checked out by your GP. If they don't have anything helpful to say, see an osteopath or other back expert. In the meantime, it is worth experimenting with some tried and tested gadgets - and, yes, there are some I recommend, despite my reservations. Here are six that I believe really work … Gary's verdict on the FlexxiCore Passive Exerciser … Great for back maintenance, but this won't provide pain relief if you already have a problem…".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "You really can enjoy the benefits of a whole body workout while simply lying down and relaxing with your feet up";
2. "This mobilises the whole of the back without effort";
3. "Widely used by therapists in clinics"; and
4. "It provides a convenient way to enjoy an energising workout while gently mobilising the back - at a fraction of the cost of the specialist CPM equipment used by back care professionals".
Response
1.,2.,3. & 4. Energy for Health Ltd said they did not seek to make any medical claims. They said they made it clear that use of the FlexxiCore was neither a cure for back problems or any specific illness, nor a substitute for getting the help of an individual healthcare professional. They said it also was not a substitute for regular exercise since it did not have muscle-strengthening capability. They said the ad did not imply that the product was able to treat back pain and stated that the ad included comments from an osteopath stating that the product could not provide pain relief for people who already had a problem. They considered the product to be beneficial for health and said that had been backed up by extensive trials with over 200 Healthcare Practitioners. They said they sold the product with a 60-day money back guarantee so that users could experience the effect for themselves, and could then decide whether to return or keep it. They said they were a small company and did not have the resources to undertake clinical trials, but would continue to make the products available to the public because they were appreciated and they had an extensive library of testimonials to show that. They provided references to research articles that they considered explained the background to Continuous Passive Motion (CPM) and the benefits from providing such mobilisation of the sacro-illiac joints and back with passive exercisers in that class. They said the product was CE marked and provided an EC Declaration of Conformity from the manufacturer and the cover page of the test report that formed the basis of that declaration.
Assessment
1. Upheld
The ASA considered that the claim "You really can enjoy the benefits of a whole body workout while simply lying down and relaxing with your feet up" was an objective claim capable of substantiation. Although we noted that Energy for Health had provided references to a number of research articles in response to the complaint, they did not provide the articles in full and we therefore considered that they were insufficient to verify the efficacy claims made in the ad. Because we had not seen any evidence that the FlexxiCore Passive Exerciser provided the benefits of a whole body workout, we concluded that the claim was likely to mislead.
The ad breached the 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).
2. & 4. Upheld
We noted that the ad included repeated references to "back pain" and "back care" and considered that, in that context, the claims that the FlexxiCore Passive Exerciser could mobilise the back would be interpreted by readers to mean that the product was capable of improving back mobility with a view to avoiding or treating back pain. Although we acknowledged that the ad included comments taken from an article written by an osteopath that stated "Great for back maintenance, but this won't provide pain relief if you already have a problem", we did not consider that text to be prominent enough to negate the impression given by the rest of the ad. We therefore considered that the claims required a body of scientific evidence, such as clinical trials conducted on people, in order to substantiate them. As per point one, because Energy for Health did not provide the full details of the research that they had highlighted in their response, we were unable to consider them as substantiation for the claims. Because of that, we concluded that the claims were misleading.
The ad breached the 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.
(Medicines, medical devices, health-related products and beauty products).
3. Upheld
We considered that consumers would understand the claim "Widely used by therapists in clinics" to mean that the product had been introduced as a means of treating patients by a wide range of medical practitioners. Because we had not seen any evidence that that was the case, we concluded that the claim was likely to mislead.
The ad breached the 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).
Action
The ad must not appear again in its current form. We told Energy for Health Ltd to ensure that they held adequate substantiation for their claims.
