Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for Facebook ad for Motion, an AI-controlled calendar, seen on 11 May 2023. The caption stated, “There’s a new way to get 25% more done”. The ad featured a video of a text message exchange between two people. Messages from the first person stated, “My deadlines keep piling up and my ADHD brain doesn’t know what to prioritize” and “I think the boss is starting to notice, HELP!!”. The other person replied, “You should try Motion!” and “It’s the best way to get organized when you have ADHD”. More messages from them stated, “Motion is an AI personal assistant!” and then “The automations that Motion offers are soooooo [sic] helpful”. The first person then responded, “How?! Cause [sic] I keep forgetting my tasks”, “Missing deadlines” and then “And messing with my schedule”. The second person responded “Motion’s AI does it all for YOU” and “It’s the only way I was able to get a promotion!”.
Issue
The complainant challenged whether the:
1. medical claims breached the Code; and
2. ad discouraged essential treatment for a condition for which medical supervision should be sought.
Response
1. & 2. Nexusbird Inc t/a Motion said they were primarily based in the United States, with less than 10% of users of the Motion app coming from the UK. Whilst their ads sometimes appeared outside of the USA, they did not target a particular country.
They said Motion was a generic productivity software that enabled users to manage their tasks, calendar and projects, and that it was not designed to treat any medical conditions. They said the majority of their ads showed people using the product and explaining how it helped with their productivity. They explained, for ads that mentioned ADHD, the condition was only highlighted because of the impact the app had on the productivity of users who had the condition.
They did not believe the ad claimed to diagnose, treat or cure or prevent ADHD, or that Motion should be used as a replacement of treatment for the condition. They also stated their ads did not suggest it should be used in conjunction with medical treatment for ADHD. However, they said the ad had been removed and similar ads would not be published in future.
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 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.
The ad stated “my deadlines keep piling up and my ADHD brain doesn’t know what to prioritize [sic]”. In response, the message in the ad stated that Motion was “the best way to get organized [sic] when you have ADHD” and “the automations that Motion offers are soooooo [sic] helpful”. The ad also showed that the person with ADHD was forgetting tasks, missing deadlines and struggling to keep on top of their schedule, to which the message responded “Motion’s AI does it all for YOU”. The ASA acknowledged Motion’s intention to highlight the ways in which the product could help people, including those with ADHD, increase their productivity and that they did not believe they had made any medical claims in the ad. However, we considered the statements implied that Motion could help individuals with ADHD to manage and reduce certain symptoms of the condition and increase their productivity, and thereby help to treat the condition. The ad also implied that using the Motion app would enable individuals who were struggling at work because of their ADHD to get a promotion. Similarly, we considered that suggested the product could help alleviate the symptoms of ADHD and, therefore help to treat the condition. We therefore considered those statements were medical claims which therefore required that the product met the requirements for medical devices.
However, as above, because we understood the product was not registered with the MHRA, nor had we seen any evidence that the Motion app had the applicable conformity marking, we therefore 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 suggested those with ADHD could use the Motion app to alleviate certain symptoms of the condition. 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 Motion app 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 its current form. We told Nexusbird Inc t/a Motion 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.
