Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website and paid-for Facebook ad for footwear company Orthoback:
a. The website https://orthoback.com/, seen on 28 March, featured a page titled “Everyday Shoe” which contained an image of black shoes with the text “… ORTHOSHOES [registered trademark symbol after “ORTHOSHOES”] EasyWalk Pro - Ergonomic Pain Relief Shoe … SAVE £74.85 £49.90 £124.75 [strike through “£124.75”]. Further text at the top of the page stated, “Easy Returns”. Text at the bottom of the page stated “100% Satisfaction Guarantee. Not satisfied? Take advantage of our money-back guarantee … 30-Day Exchange Policy. Easily exchange your goods within 30 days”. The FAQ page stated “Service, Returns & Exchanges. What is your return policy? If you are dissatisfied with your order or have noticed any quality issues, please contact our customer support within 30 days to initiate a smooth return or exchange process”.
b. The Facebook ad, seen on 17 April, featured the text “Here are your benefits when purchasing the EasyWalk Pro: Arch support relieves foot & heel pain, Cushioned sole eases back & knee stress, Ergonomic design enhances gait & posture, Flexible Toe Box provides spaces”. The ad featured a video which started with a man in a white coat and overlaying text which stated “GEOFFREY WILLIAMS, ORTHOPEDIST FOR 35 YEARS”. Voice-over then stated “No woman with foot pain leaves my practice without these shoes. The orthopaedic Easywalk pro Shoes by Orthoback relieve pressure points on the soles of the feet and actively alleviate pain … pain-free shoes that look sporty rather than medicinal … particularly helpful for plantar fasciitis, arthritis, ankle pain, and swelling … these shoes correct foot posture.”
Issue
The ASA received two complaints:
1. One complainant, who believed the product was never sold for £124.75, challenged whether ad (a) was misleading.
2. One complainant, who found there were various conditions to making a return, challenged whether the claims “Easy Returns” and “Take advantage of our money-back guarantee” in ad (a) were misleading.
3. One of the complainants also challenged whether ad (b) made medical claims which breached the Code.
Response
MedTech Global LLP t/a Orthoback did not respond to the ASA’s enquiries.Assessment
The ASA was concerned by Orthoback’s lack of response and apparent disregard for the Code, which was a breach of CAP Code 1.7 (Edition 12) rule (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in the future.
1 Upheld
Ad (a) stated “EasyWalk Pro - Ergonomic Pain Relief Shoe … SAVE £74.85, £49.90 £124.75 [strike through “£124.75”]”. We considered that consumers would understand from the price claim that the usual selling price of the product was £124.75 and therefore that a genuine saving of £74.85 could be made.The ASA had received no evidence from Orthoback that the higher price stated was the usual selling price. We therefore concluded that the savings claim in ad (a) was misleading.On that point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.17 (Prices).
2 Upheld
The CAP Code stated that marketing communications must not use the word "guarantee" in a way that could cause confusion about a consumer's rights and marketers must promptly refund consumers who make valid claims under an advertised money-back guarantee.
Ad (a) included the claims “Easy Returns” and “Take advantage of our money-back guarantee”. We considered that consumers would understand from this that they could readily claim a full refund if they returned the purchased product in line with the advertised guarantee. However, the complainant confirmed that when they had contacted Orthoback for a refund, they were offered a 50% discount and told to keep the shoes. The complainant further told us that no return address was made available to enable them to return the product. We also received no information from Orthoback that demonstrated that consumers were routinely refunded as claimed when making returns. In addition, the “Refund policy” page of the website included the text “Please note, as per our policy, a restocking and refurbishment fee of £9 will be deducted from your refund”, which we considered misleadingly contradicted the impression that a full refund was available.
For those reasons, we concluded that the claims “Easy Returns” and “Take advantage of our money-back guarantee” in ad (a) were misleading.On that point, ad (a) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.53 and 3.55 (Guarantees and after-sales service).
3 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 Great Britain. The ASA understood that the product was not registered with the MHRA as a medical device.
The CAP Code stated medicinal or medical claims and indications were made only for a medicinal product that was licensed by the MHRA, the Veterinary Medicines Directorate (VMD) or under the auspices of the European Medicines Agency (EMA), or for a medical device with the applicable conformity marking.We considered consumers were likely to interpret the claims in ad (b) “particularly helpful for plantar fasciitis, arthritis, ankle pain … these shoes correct foot posture” as medical claims that the shoes could treat the symptoms and conditions listed.
Because the ad made medical claims, it was therefore necessary for the product to meet the requirements for a medical device. However, because we had received no evidence that the product was registered with the MHRA, nor had we seen any evidence that it had the applicable conformity marking, we therefore considered that medical claims could not be made for the product. Because the ad made medical claims, we concluded that it breached the Code.On that point, ad (b) breached CAP Code (Edition 12) rule 12.1 (Medicines, medical devices, health-related products and beauty products).
Action
The ads must not appear again in their current form. We told MedTech Global LLP t/a Orthoback to ensure that future ads did not make savings claims unless they were genuine. We further told them not to claim there were easy returns or a money-back guarantee if not all valid refund requests were honoured or if deductions were routinely made. Furthermore, they should not make medical claims for products that did not have the applicable conformity marking and were not registered with the MHRA. We referred the matter to CAP’s Compliance team.
CAP Code (Edition 12)
3.1 3.7 3.17 3.3 3.53 3.55 12.1
