Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for ad on Facebook for Impulse Brain Training, a puzzle game app, seen on 29 September 2023. The ad contained an image that stated, “What’s your ADHD type?” There were lines drawn to each ADHD type listed which included “ADHD free”; “Classic”; “Temporal Love”; “Limbic”; “Anxious”; “Over Focused”; “Ring of Fire”; and “Inattentive”.
Text at the bottom of the ad stated “TAKE TEST”.
Issue
The ASA challenged whether:
1. the medical claims breached the Code; and
2. the ad discouraged essential treatment for a condition for which medical supervision should be sought.
Response
1. & 2. GMRD Apps Ltd t/a Impulse Brain Training stated they did not believe the Impulse Brain Training app was categorised as a medical device and that the ADHD test promoted in the ad was not intended for the diagnosis of ADHD, but for information and educational purposes only. They highlighted the ADHD types referenced in the ad were not recognised as official symptoms of ADHD as recognised by the World Health Organization (WHO), and that therefore the ad did not diagnose specific types of ADHD.
They further stated that the app did not make any medical claims or provide a medical diagnosis and that they had included a disclaimer before users took the test to encourage them to seek professional help if they suspected any health problems.
Impulse Brain Training stated the app did not offer treatment for ADHD, but that the test was intended to raise awareness of the condition and provide information to users that may be experiencing attention-related problems. They also said they were working with an American university to license an 18-part self-reporting questionnaire to enhance the accuracy and reliability of their assessment.
Assessment
1. Upheld
The Medicines & Healthcare products Regulatory Agency (MHRA) required that a medical device was registered with them before it was placed on the market in the UK. The ASA understood that the product was not registered with the MHRA as a medical device.
The CAP Code stated that medicinal or medical claims and indications could be made only for a medicinal product that was licensed by the MHRA, the Veterinary Medicines Regulations (VMD) or under the auspices of the European Medicines Agency (EMA), or for a medical device with the applicable conformity marking.
Text in the ad stated “What’s your ADHD type?”, beneath which were listed a number of different types of ADHD, such as “Anxious” and “Over Focused”, as well as “ADHD free”. We understood the types referenced were not official categories of ADHD, as recognised by the WHO. However, as the ad stated “TAKE TEST” and one of the types referenced was “ADHD free”, we considered the ad implied that by using the app and taking the test, users could find out if they had ADHD or not. We therefore considered the ad implied it could diagnose ADHD. As this was a medical claim, it therefore required that the product met the requirements for medical devices.
However, because we understood the product was not registered with the MHRA, nor had we seen any evidence that the Impulse Brain Training app had the applicable conformity marking, we considered that no medical claims could be made for the product. Therefore, because the ad made medical claims, we concluded it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 1.10 (Legality) and 12.1 (Medicines, medical devices, health-related products and beauty products).
2. Upheld
The CAP Code stated that marketers must not discourage essential treatment for conditions for which medical conditions should be sought. Advertisers must not offer specific advice on diagnosis of or treatment for such conditions, unless that advice, diagnosis or treatment was conducted under the supervision of a suitably qualified medical professional.
As discussed above, we considered the ad implied that the Impulse Brain Training app could diagnose ADHD via an assessment. We considered that ADHD was a condition for which medical supervision should be sought, and therefore advice, diagnosis or treatment should be conducted under the supervision of a suitably qualified medical professional.
However, we did not receive evidence to show that diagnosis for those with ADHD using the Impulse Brain Training app was carried out under the supervision of a suitably qualified medical professional.
We acknowledged that the test contained a disclaimer before users took the test. However, we considered that the ad itself did not contain a disclaimer, and in any case a disclaimer did not negate Impulse Brain Training’s responsibilities to demonstrate that the diagnosis of ADHD was conducted under the supervision of a suitably qualified professional.
We considered that, in the absence of such a professional, because the ad implied it could diagnose ADHD, it therefore discouraged consumers from seeking essential treatment for a condition for which medical supervision should be sought, and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 12.2 (Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told GMRD Apps Ltd t/a Impulse Brain Training not to make medical claims for products that did not have the applicable conformity marking and were not registered with the MHRA. We also told them not to make claims that discouraged the essential treatment for a condition for which medical supervision should be sought.
