Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for Facebook ad for Happyo, a behaviour programme aimed at those with ADHD, seen on 29 September 2023, featured a video. The voice-over said, “I just can’t focus. Sounds familiar? This is how I solved it. For one, it made it difficult to complete tasks; I would start something but then get easily distracted and lose track of what I was doing.” The video showed different people doing different tasks including studying, typing on a laptop and folding a towel.
The voice-over further said, “Here comes Happyo! This programme helps me to build healthy habits and understand how my ADHD brain works. Manage your ADHD with Happyo. Take the test.” The video then showed the Happyo website and a person answering different questions.
The caption stated “Are you ready to unlock the hidden superpowers of your ADHD brain?” Further text stated “ADHD management is a journey rather than a quick fix. Happyo has a ton of CBT (Cognitive Behavioural Therapy) approaches, common lessons, and soothing activities as a result. Learn to manage ADHD today”.
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. Happyo said they had removed the ad in response to the complaint and provided evidence that it had been withdrawn.
Assessment
1. Upheld
The Medicines and 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.
The voice-over in the ad talked about their experience of ADHD before and after using Happyo. They said, “For one, it made it difficult to complete tasks; I would start something but then get easily distracted and lose track of what I was doing”, and “This programme helps me to build healthy habits and understand how my ADHD brain works. Manage your ADHD with Happyo.” We considered those statements implied that the app helped to manage and reduce certain symptoms of ADHD and increase their productivity, thereby alleviating the symptoms of the condition. We noted that the voice-over also referred to solving their ADHD, which we considered consumers would understand to mean that the individual’s ADHD no longer affected them after using Happyo and, therefore, that the app helped to treat the condition.
Text in the caption stated “ADHD management is a journey rather than a quick fix. Happyo has a ton of CBT (Cognitive Behavioural Therapy) approaches, common lessons, and soothing activities as a result. Learn to manage ADHD today”. Because the text referred to treatment and techniques to manage ADHD, we considered that furthered the impression that the product could treat those with the condition. The caption also stated “Take the test”, which we considered consumers would interpret to mean that the app could diagnose ADHD. Those statements therefore were considered to be medical claims and required that the product met the requirements for medical devices.
However, because we understood the Happyo program was not registered with the MHRA, nor had we seen any evidence that the website had the applicable conformity marking, we considered that no medical claims could be made for the product. We welcomed Happyo’s action in removing the ad. However, because at the time the ad was seen it 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.
The ad suggested the Happyo programme could diagnose ADHD via a questionnaire. 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 treatment for those with ADHD using the Happyo program was carried out under the supervision of a suitably qualified medical professional. We considered that, in the absence of such a professional, the ad discouraged consumers from seeking essential treatment for conditions 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 the form complained of. We told Happyo 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.
