Background
Summary of Council decision:
Three issues were investigated, of which two were Not upheld and one was Upheld.
Ad description
A brochure for Cells4Life and a page on their website, featured a number of claims about the company.
Issue
Precious Cells International Ltd challenged whether:
1. the claim on the website "Cells4Life stores more UK stem cells than any other private bank" was misleading and could be substantiated, because they believed Future Health Technologies had more stored samples;
2. the claim "Cells4Life is the only one to store whole cord blood. This superior method can greatly increase the success of treatment should your child need it" was misleading and could be substantiated, because they believed storing whole cord blood was outdated and was not a superior method; and
3. the claim "Cells4Life operates its collection service 24 hours a day, 365 days a year" was misleading and could be substantiated, because they had tried to contact Cells4Life out of hours and had not received a response.
Response
1. Cells4Life said they did not dispute that Future Health Technologies stored more international samples in the UK than any other UK bank. However, they said they stored more UK samples than all the other UK banks combined, including Future Health Technologies, and they represented more than 50 per cent of the UK market. They believed their advertising was clear in this regard. They noted that the Human Tissue Authority licensed all cord blood banks in the UK, and as it was illegal for any company to operate without a licence, they were aware of all competitors. They provided evidence from a leading UK cord blood phlebotomy company that stated Cells4Life was the largest procurer of cord blood in the UK. Cells4Life also advised that they had recently spoken to their major competitors, except for Precious Cell, to exchange information on the market size, which had confirmed that they stored more samples per month than any of their competitors. They provided supporting information about the annual turnover of their competitors, as well as Future Health Technologies' published accounts for the previous year, and said their turnover was considerably higher, representing more UK samples per month than competitors.
2. Cells4Life said they had described whole cord blood storage as "superior", because all other processing methods resulted in a loss of cells from the sample, but whole cord blood storage did not. They explained that more cells increased the chance of a successful outcome of any future treatment and provided three studies to demonstrate the recoveries of cells using different methods where whole cord blood was the initial start value of each sample. They also sent a fourth study to show that attempts to reduce volume would always recover less than 100% of the total nucleated cell (TNC).
3. Cells4Life provided confirmation from their courier company that they operated 24/7 on Cells4Life's behalf. Cells4Life said they also always had a minimum of three staff members on call in different functions of their UK office, as well as an emergency IT technician, and phone calls were controlled by an automatic attended call system that transferred the call to the relevant person when the main office number was called out of hours. They provided evidence from their phone system to show out of hours calls were transferred to on-call staff members, including a list of all calls received in February and March 2014.
Assessment
1. Not Upheld
The ASA noted that Cells4Life intended to compare the amount of UK samples stored in the UK. We considered the claim "Cells4Life stores more UK stem cells than any other private bank" made sufficiently clear that the storage of UK stem cells only was being compared. We were satisfied that Cells4Life had shown they were aware of all UK competitors and that they had taken sufficient measures to ensure the comparison was accurate, and we therefore concluded it was unlikely consumers would be misled by the claim.
On this point, we investigated the ads under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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 (Substantiation) and 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), but did not find them in breach.
2. Upheld
We considered that consumers would interpret the claim to mean that whole cord blood storage was more effective than other methods of cord blood storage for the subsequent successful treatment of children. To substantiate the claim, Cells4Life needed to demonstrate through documentary evidence that this interpretation was robustly supported.
We understood that cell numbers were a relevant factor when considering whether cord blood samples were likely to be effective in treatment and that Cells4Life had based their claim on the number of cells recovered after whole cord blood preservation over the number recovered from cord blood samples stored through different means. The evidence submitted showed that whole cord blood was the starting point for all preservation techniques and that 100% of the cells from a whole cord blood sample were stored. The fourth paper submitted explored cord blood banking for clinical transplantation and, as part of this the technical developments in processing and freezing were discussed. It explained that the freezing of unmodified cord blood samples avoided the losses associated with volume reduction, but also that there were potential clinical drawbacks with whole cord blood preservation. In addition, a retrospective comparative study of post-thaw cell viability referred to in the paper indicated that the percentage cell recovery rates on that occasion were higher for a volume-reduced sample frozen and stored in a computer-controlled environment than the percentage of cells recovered from the whole cord blood sample used in the comparison. Although the paper recognised that TNC criteria had been broadly adopted for cord blood unit selection and that volume-reduced methods resulted in TNC losses, it also gave the author's view that the cells lost through some volume-reduced methods were mature and their loss, therefore, was not expected to reduce the effectiveness of the sample. We considered that the evidence submitted did not demonstrate definitively that whole cord blood storage was a superior method.
In the absence of robust evidence, we concluded that the advertisers' claim for whole cord blood storage to be a superior method of cord blood preservation, leading to the increased success of subsequent treatment that relied on it, had not been substantiated.
On this point, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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) and
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).
3. Not Upheld
The ASA understood that Cells4Life had a contract in place with a courier company for a 24 hours a day service. We also noted that the evidence they had provided showed that out of hours calls had been transferred to on-call staff members. We considered that the evidence they had provided was sufficient to substantiate the claim "Cells4Life operates its collection service 24 hours a day, 365 days a year" and therefore concluded that this was not misleading.
On this point, we investigated the ads under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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) 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), but did not find them in breach.
Action
The ads must not appear again in their current form. We told Cells4Life Group LLP not to state that whole cord blood storage was superior to other methods of cord blood storage unless robust evidence was held in support.
