Background
Summary of Council decision:
Six issues were investigated, of which four were Upheld and two were Not upheld.
Ad description
A poster, a website, a paid-for Google ad, a TV ad and a YouTube video for Push Doctor:
a. A poster displayed on London Underground trains, seen in August 2017, stated “You will never go to the doctor’s [sic] again. See a doctor online in 6 minutes Prescriptions. Fit notes. Referrals. Amazing customer service”. Smaller text stated “Now you can use Push Doctor. The UK’s most popular online doctor service is open 6am - 11pm, 7 days a week, allowing you to access an NHS GP whenever you want. Gone are the days of making endless calls to a surgery just as it opens, only to have to explain yourself to get an appointment - then having to travel some more, just to join another queue to get to see someone. Now you can see a doctor online in under 6 minutes. With 9 out of 10 customers getting a resolution in their first consultation, you can be back on your feet in no time. Try it today”. The ad featured the Trustpilot logo underneath five boxes, each with a star inside (‘the five-star graphic’).
b. The home page of the Push Doctor website www.pushdoctor.co.uk, seen on 11 September 2017, stated “SEE A DOCTOR ONLINE … THE WAIT IS OVER. Whether you’re unwell, looking to improve your fitness, have a specific aspiration in mind, or just have a quick question - you can talk face-to-face with a professional, caring UK doctor in as little as six minutes. 1. BOOK AN APPOINTMENT … 2. SEE A DOCTOR ONLINE … 3. START FEELING BETTER”. The Trustpilot logo and five-star graphic was displayed towards the top of the web page. Further down the page text included “Our UK doctors treat almost everything your normal GP can, but quicker. No waiting, no travelling”. Four small blue boxes arranged vertically at the right-hand side of the web page; the small boxes remained visible when users scrolled down the page and contained white text that stated “CHAT”, “HELP”, “CALL” and “PRICING” with relevant accompanying symbols. This ‘widget’ was visible on all pages of the website.
Clicking on the Trustpilot logo and five-star graphic brought up a box which showed Trustpilot reviews. On 19 September 2017, it was headed “Great”; underneath was a four-star graphic and the text, “Based on 861 reviews. See some of the reviews here”. 20 Trustpilot reviews were shown below, dating from 25 August to 19 September 2017, all of which were five-star reviews.
A button on the home page, labelled “See a doctor”, linked to a page headed “Appointments available for Today”. The page listed available appointment times and a “Book” button next to each appointment. The web page also featured the Trustpilot logo and five-star graphic.
A link in the header bar of the home page, labelled “NHS” linked to a page headed “NHS & PUSH DOCTOR”, had text underneath that stated “Feeling unwell? Looking for advice? Speak with an NHS trained [sic] doctor in as little as 6 minutes”, followed by the NHS and Push Doctor logos. Further text stated, “How it works Get the advice and treatment you need in three simple steps: 1. Book an online appointment at a time that suits you … 2. Talk face-to-face with a doctor using our app or website. 3. Get medical advice, prescriptions, sick notes and more. All of our doctors are NHS trained and can treat almost everything your own GP can. No travelling, no waiting, no worrying”. Approximately half-way down the web page, there was text that stated, “See a doctor today for just £20”. Further text stated, “Why our GPs like being a Push Doctor: - It gives patients more options when it comes to their healthcare - It’s completely safe and secure - It’s flexible, offering out-of-hours services - Patients don’t need to leave their house and doctors can work from a safe environment - It’s quick, simple and convenient”. At the bottom of the page, under the heading “CONTACT US”, there was text that included, “Are you an NHS CCG or Foundation Trust, a GP practice or GP Federation interested in exploring whether Push Doctor could work for you and your patients?”.
Text on the “NHS & PUSH DOCTOR” web page was later amended. When seen on 20 October 2017, text under the heading stated “Revolutionising healthcare with online video consultations See an NHS-trained GP at a time that suits you”. The Push Doctor and NHS logos no longer appeared. In place of the section headed “How it works”, there was text that stated “Better together All of our GPs are NHS-trained [sic] and work in NHS or private clinics in their regular jobs. We’ve developed cutting-edge technology that lets them fit Push Doctor consultations seamlessly into their out-of-hours work. Our online video consultations deliver a fully immersive, smart-consulting experience. They can improve efficiency, offer better access for patients and encourage a more proactive approach to health - lowering costs, both today and in the long term”. The text, “See a doctor today for just £20” was replaced by text that stated, “Experience our service for yourself Book your first appointment today for just £20”. Other minor amendments had been made to the section titled, “Why our GPs like being a Push Doctor”. The “CONTACT US” section remained the same.
c. The paid-for Google ad, seen on 26 June 2017, included the claims “Join The Thousands Of People Turning To Online Healthcare Daily … NHS Commisioned [sic] Proud To Be An NHS Commisioned [sic] Technology Provider … See A Doctor Online Appointments Available 7 Days A Week … No Waiting, No Worrying We Can Do Everything a Regular GP Can Do Except Much Faster”.
d. The TV ad, seen on 27 August 2017, featured shots of several different people as a voice-over stated, “With thousands of UK GPs in our smart network, you could see a doctor in six minutes on any device”. A man, depicted on a mobile screen headed with the Push Doctor logo, stated, “Your prescription is ready”. Small print displayed at the bottom of the screen stated, “See website for costs. T&Cs apply. Under 18s seek permission. Not for emergencies”. The Trustpilot logo and five-star graphic then appeared. The voice-over continued, “Nine out of ten people get the help they need first time”. Large on-screen text then stated “… No waiting room No time off work Things just got better”. The voice-over concluded “Push Doctor. The wait is over”.
e. The YouTube video, which was the same as the TV ad, was seen on Push Doctor’s YouTube channel on 30 August 2017.
Issue
The ASA received 31 complaints, including from Doctors in Unite, six doctors, and the campaign organisation 38Degrees that represented a large number of petitioners:
1. 18 complainants – who felt ads (a), (b), and (d) did not make clear that a cost was associated with the service – challenged whether the ads were misleading;
2. 23 complainants – who believed that ads (a), (b), (c) and (d) implied that the advertised service was provided by the NHS – challenged whether the ads were misleading;
3. 21 complainants, who understood there were some medical conditions or emergencies that required face-to-face evaluation and/or access to a patient’s medical notes, challenged whether ad (a), and particularly the claim “You will never go to the doctor’s [sic] again”, was misleading;
4. 21 complainants also challenged whether ad (a), and particularly the claim “You will never go to the doctor’s [sic] again”, was irresponsible for the same reasons referenced at point 3;
5. Three complainants, who understood that Push Doctor had an overall four-star Trustpilot ‘TrustScore’ rating, challenged whether the five-star graphic in ads (a), (b) and (e) was misleading; and
6. One complainant, who understood the box showing Trustpilot reviews in ad (b) omitted negative/low-rated reviews that had been written during the same period of time as those featured in the box, challenged whether the ad was misleading.
Response
1. Push Dr Ltd, trading as Push Doctor, said they were a private healthcare provider regulated by the Care Quality Commission (CQC). They said that they had no intention to conceal that they offered a paid-for service and that it was not in their interests to mislead consumers to that understanding. They said that a 10-minute consultation was charged at £20, referrals to specialists cost £15, and an £8 administration fee was charged for prescriptions.
Push Doctor considered consumers were already sufficiently aware of their brand and therefore would know that Push Doctor was related to a paid-for, non-NHS service. They provided data from a brand awareness survey conducted quarterly in 2017, which they said showed they had a high level of awareness in the sector amongst consumers, including having higher brand awareness than two well-established brands that did not feature price in the way the complainants suggested Push Doctor should. They further said that most visitors to their website arrived as the result of an online search. They believed the data demonstrated that consumers would be aware that they were a private healthcare service and would therefore approach all the ads from that perspective.
They said they tried to make pricing very clear throughout their service. Their website (ad (b)) contained a prominent pricing section under the menu heading “HOW IT WORKS”, and any attempt to engage in the service led to a checkout procedure which gave information about the pricing structure before checkout. They said that all material information was therefore made clearly available before customers decided whether to book the service. They added that a widget was visible on every page of the website (the small boxes on the right-hand side of the web page, which included a box with a “£” symbol and the text “PRICING”) which linked to their pricing information. They said the “£” symbol was larger than the body copy text on the web page, and provided Google Analytics data from 11 September 2017 which they considered to have shown that a high proportion of visitors to their website viewed pricing information before they entered the booking process.
Push Doctor said they had tested how long it took for people who went straight into the booking process from the home page to arrive at the page with pricing information, and provided details of how they had run those tests. They said people were very quickly presented with pricing information. They highlighted that website visitors were not required to provide any information or to sign up before seeing that information. They considered that even if website users had been misled, it was only for a very brief time period.
They also highlighted that the website home page included a section headed “Our most watched customer reviews”, which they considered indicated, through the use of the term “customer”, that they provided a service that required payment. They also noted that the logos of credit and debit cards were featured in the footer of every page of their website – they considered this to have further indicated that they provided a service that required payment.
With regard to the poster (ad (a)) and TV ad (ad (d)), which did not include pricing information, Push Doctor said that this was common practice, including within the healthcare industry, to not feature pricing information. They felt that because private healthcare services were well known to the general public, consumers would reasonably expect that access to such a medical consultation and related services would come with a charge.
In relation to the TV ad (ad (d)), Clearcast said that there were no claims that the service was free in the ad and that they did not consider it to have given that impression. However, they had asked the agency to include the on-screen text “See website for costs” to remove any doubt. They felt it was not necessary to include pricing information in the ad as it wasn’t material information relevant to the service as presented. They considered it would be clear to viewers that there was a cost involved.
2. Push Doctor said that they did not attempt to mislead consumers into thinking that they were a service run by the NHS and that none of the Trustpilot reviews they had received over the period in question had made any reference to customers thinking that Push Doctor provided an NHS service. They said neither their website nor the TV ad used the term “NHS GPs”; rather those ads referred to “GPs” or “UK GPs”. They said they used the word “NHS” in two different ways
The first way was to describe the GPs who provided the Push Doctor service, all of whom were NHS-trained or accredited and were either current NHS GPs or on the NHS National Performers list. They accepted that it would be clearer to use phrases such as “NHS-accredited” or “NHS-approved” GPs rather than “NHS GPs”; they said they would make that alteration to their advertising, although they did not accept that the context in which they had used the phrase “NHS GPs” in the ads was misleading.
The second way they used the word “NHS” was to show that they worked with the NHS, that they were a technology provider to the NHS, and that the NHS trusted them. They said they had a broad, ongoing relationship with the NHS through which they built and part-operated a mobile consultation solution for the NHS in 2014 (the “Push NHS” app). They used the word “NHS” in order to engender trust in consumers for their consumer-facing Push Doctor service.
In relation to ad (a), the poster, they highlighted that the text, “allowing you access to an NHS GP whenever you want” appeared in the context of the headline “You will never go to the doctor’s[sic] again”, which they considered was a way of comparing Push Doctor’s better customer service to access to a traditional GP surgery.
They explained that the text “NHS Commissioned [sic] Technology Provider” in ad (c), the paid-for Google ad, related to the Push NHS app. They said that text was not in the ad copy but rather was underneath the ad in a sitelink, which linked through to the “NHS & PUSH DOCTOR” page on their website and appeared alongside five other sitelinks. They wrote the copy contained within a sitelink but a Google algorithm determined whether and which sitelinks were shown. They said that sitelinks only appeared in ads that were displayed when users searched for “Push Doctor” (or variations on the spelling or as part of a broader search term specified by Push Doctor). Therefore the sitelink was only presented to consumers who had prior knowledge of the brand and wanted to search for it. They believed that was relevant to whether consumers would be aware of the relationship between Push Doctor and the NHS. They further stated that three days before the complainant saw the ad, on 23 June 2017, it had appeared 61 times and on 47 of those occasions the sitelink “NHS Commissioned [sic] Technology Provider” appeared alongside another sitelink which stated “Appointments For £20 We Offer affordable Private Doctor appointments Online & via our app”, which linked directly through to their pricing page. However, to avoid confusion with their private healthcare service, they had removed the “NHS Commissioned [sic] Technology Provider” claim from the ad.
In relation to the TV ad, Clearcast considered there were no claims or implications that Push Doctor GPs were associated with the NHS. The agency had confirmed that Push Doctor operated a network of thousands of GPs in the UK – they considered this to have supported the claim, “Thousands of UK based GPs”.
3. & 4. Push Doctor said the CAP Code allowed advertisers to use obvious exaggerations (“puffery”) and claims that consumers would be unlikely to take literally, provided that the claims did not materially mislead. They believed the line, “You will never go to the doctor’s [sic] again” reflected the better experience their customers received compared to visiting a doctor’s surgery.
They felt consumers would understand that an online consultation would not be a substitute for a conventional, in-person consultation in all circumstances. They said that the ad included, “9 out of 10 customers getting a resolution in their first consultation” and therefore they did not claim that they were able to treat all conditions and did not trivialize the importance of a physical consultation. They explained that they considered a resolution to be a situation in which a patient would not need to consult another health professional about their presenting complaint following their Push Doctor consultation; that included providing a prescription for repeat medication, provision of advice, treatment or referral for onward specialist care. Situations in which patients required an in-person appointment or emergency care were not classed as a resolution. Resolutions were only reached by UK-registered and practicing GPs and were only ever completed post-consultation. They said that doctors, as opposed to patients, were best-placed to judge whether a resolution had been reached and that this was the standard way in which resolutions were tracked within the general practice of the medical profession.
They said the figure relating to the number of customers getting a resolution was based on data taken from regular and systematic audits of their consultations, which were carried out by registered GPs who were independent of Push Doctor’s consulting GPs. They reviewed diagnoses and outcomes, as well as every prescription issued by their doctors. They said that they typically saw patients who were aware of what they could treat and who had sensible expectations of what would be treatable without a physical examination. They provided data showing the number of consultations per day from 4 to 11 January 2018 and the percentage of those consultations on each day that were concluded without any onward need for face-to-face care. Over the full eight days, 98.9% of consultations concluded without need for onward face-to-face care. They also later provided daily figures for the percentage of resolutions during January and February 2018 and said that even if they didn’t class a referral for onward specialist care as a resolution, the figures still showed that over 90% of remaining cases ended in a resolution.
They added it was made clear throughout their website and app that Push Doctor was not to be used in emergency situations or for assessing certain specified symptoms; in both circumstances users were advised to call 999 or seek alternative urgent medical care. If during the course of a consultation the GP considered that urgent treatment or an in-person assessment was required, they would advise the customer accordingly, with support provided in contacting the customer’s own GP and/or in seeking alternative care in line with standard GP practices.
Responding in relation to Point 4 only, Exterion Media said they reviewed the ad and felt it was suitable for display. They said the text, “Prescriptions. Fit notes. Referrals. Amazing customer service” made clear that a possible outcome of a Push Doctor consultation was a referral, and they considered that would involve providing advice to seek alternative help or specialist advice in relation to certain medical conditions.
5. Push Doctor said they had previously had a five-star Trustpilot ‘TrustScore’, and the poster clearly stated the date when that rating was achieved. They noted that over time the rating had adjusted to four-stars. They said they operated a policy of not displaying rating references older than a year old and were therefore constantly in the process of updating relevant content on a rolling yearly basis.
6. Push Doctor acknowledged that the box (provided through a Trustpilot widget) omitted reviews in which the customer had rated them with one, two or three stars, but said they were not aware of any requirements that they must feature negative reviews on their website. They said the Trustpilot widget included the feature and it therefore must be a widespread device on many websites. The widget was a navigational tool they used to highlight positive reviews left by their customers, but all reviews, both positive and negative, were available one click away on the Trustpilot website. They also felt that by engaging with review sites like Trustpilot and asking their customers to review their services on those sites, they were behaving transparently and in the interests of consumers.
Assessment
1. & 2. Upheld in relation to ads (a), (b) and (c) only
The ASA noted Push Doctor’s view that private healthcare services were well known to the public and that consumers would therefore reasonably expect access to services similar to those advertised by Push Doctor would come with a cost. However, we considered that consumer expectations around payment for healthcare and a company’s links to the NHS were likely to be strongly affected by their level of recognition of a company and its position as a private healthcare provider, as well as the particular context and content of ads for its services.
The brand awareness data provided by Push Doctor showed that the percentage increase of respondents who said they had heard of the brand when they saw it in a list of companies described as “online doctor services” was quite small. We considered that the data demonstrated that consumers during the period in which the advertising appeared were generally not aware of Push Doctor as a brand. We further noted that the survey question did not address if consumers knew that Push Doctor was a private healthcare provider; the survey also did not address whether consumers could recall the Push Doctor brand without prompt. We therefore considered that many consumers would be unfamiliar with Push Doctor’s position as a private healthcare provider and that the likely interpretation of each of the ads was in this context.
We considered that most consumers who saw ad (a), the poster, were unlikely to be familiar with Push Doctor, its position as a private healthcare provider or its links with the NHS. The poster included a reference to Push Doctor, “allowing you access to an NHS GP whenever you want” and described the situation of having difficulty in accessing a doctor’s appointment – a situation that we considered consumers were likely to associate with the experience of securing an appointment with some NHS GPs. In the context of those statements and the headline “You will never go to the doctor’s [sic] again”, and in the absence of information making clear that Push Doctor was a private healthcare provider, we considered consumers were likely to understand that Push Doctor offered an online method of consulting an NHS GP via the NHS and therefore without any associated cost. We considered that ad (a) misleadingly implied the advertised service was provided by the NHS and, as a result, that it was misleading because it did not make clear a cost was associated with the service.
We considered consumers were likely to have arrived on Push Doctor’s website (ad (b)) as a result of seeing an ad in other media (including via the Google ad (c)), or through natural search listings. While Push Doctor had said that the majority of visitors to their website arrived via online searches and therefore were aware of their brand, we noted that both natural and paid-for search results for Push Doctor were produced when consumers used search terms that did not include the Push Doctor brand name or any variations of it (e.g. “online doctor”, “see a doctor online” and “app doctor”). ‘We also considered that even consumers who searched for them using “Push Doctor” as a search term may not have a complete understanding of the service offered or on what terms their services were offered. We considered Push Doctor had therefore not demonstrated that the majority of visitors to their website were already aware of the services they offered and in what context. We considered that while some consumers might have some understanding of the service provided by Push Doctor, they would not necessarily be aware that Push Doctor was a private healthcare provider and that there was therefore a cost associated with that service. We reviewed ad (b) on that basis.
The home page did not include information making clear that Push Doctor was a private healthcare provider and did not state that a cost was associated with the service, although it did provide a three-point summary of the service available. The menu bar at the top of the page included the menu option “NHS”. We acknowledged that the ‘widget’ that appeared at the right-hand side of the home page (and every other page of the website) included a pound symbol and smaller text which stated “PRICING”, but we considered that many consumers were likely to overlook it. We considered the use of the term “customer” in “Customer reviews” and the logos of payment methods in the footer of the web page were not sufficient to alert consumers that Push Doctor was a paid service.
We considered consumers were most likely to respond to the prominent “See a doctor” buttons that took website users to the appointment booking process. We reviewed the click-through data provided by Push Doctor and noted that the widget featured four elements (‘Chat’, ‘Call’, ‘Help’ and ‘Pricing’) but the data related to the widget as a whole; it was therefore not clear what percentage of users specifically clicked on the Pricing element. Additionally, the data showed that there were more website visitors who went straight into the booking process from the home page than there were who viewed pricing information first. Because pricing information was not presented upfront on the website home page, we considered consumers were likely to understand that Push Doctor offered an alternative method of consulting an NHS GP via the NHS and therefore without any associated cost. We acknowledged that information about the cost of the service was presented to consumers if they clicked into the widget, if they were on other pages on the website (for example on a “Pricing” page and on the “NHS & PUSH DOCTOR” web page), or if they were in the booking process, but we considered that doing so constituted a transactional decision which some consumers would not have taken had the home page made clear that Push Doctor was a paid-for service.
We understood the web page headed “NHS & PUSH DOCTOR” was intended to make clear the relationship between Push Doctor and the NHS. At the time it was seen by the complainants, the web page included the Push Doctor and NHS logos side-by-side at the top of the page; the web page also included various statements referring to NHS-trained doctors and the service available, as well as a statement encouraging NHS representatives to contact Push Doctor if they were “interested in exploring whether Push Doctor could work for you and your patients”. Notwithstanding the fact that information about the relationship between NHS and Push Doctor was available on that web page, we considered website users were unlikely to view that web page before entering the appointment booking process. We considered that consumers who did visit that web page were unlikely to understand from its contents that the Push Doctor service/app was not an NHS service. We noted that some amendments had been made to that web page since it was first seen by the complainants. We considered that the updated body copy provided a clearer explanation of the relationship between Push Doctor and the NHS, which is that Push Doctor’s GPs had been trained in the NHS and that many GPs who worked for Push Doctor worked primarily in the NHS. However, we considered that the heading “NHS & PUSH DOCTOR” implied that the Push Doctor service/app was an NHS service, which was not the case. We considered the body copy was not sufficient to alleviate the impression created by the heading and that consumers who saw the amended version of the web page were also unlikely to understand from its contents that the Push Doctor service/app was not an NHS service
Because we considered consumers were likely to understand from the website home page that the service offered was an NHS service and subsequently provided free of charge, consumers were likely to start the booking process under that impression. We therefore concluded ad (b) was likely to mislead.
The paid-for Google ad (c) was challenged in relation to the issue in Point 2 only (whether it implied that the advertised service was provided by the NHS). While we understood from Push Doctor that the sitelinks appeared only in paid-for ads returned in response to search terms that included “Push Doctor” or some variant on it, we considered that did not demonstrate that consumers who made such a search were familiar with Push Doctor or its position as a private healthcare provider. We understood that a Google algorithm determined which sitelinks appeared in any particular ad, but we also understood that sitelinks would only appear for pages which an advertiser had actively chosen to provide a description to Google for the purpose of including them in their ads. We therefore understood that Push Doctor had chosen the wording “Proud To Be An NHS Commissioned [sic] Technology Provider” and that, by submitting it to Google, Push Doctor was responsible for it (and the associated sitelink) appearing in some of their ads. We considered that this wording implied Push Doctor provided an NHS service and, in combination with the other information in the ad about the service provided by Push Doctor, we concluded the ad misleadingly implied the advertised service was provided by the NHS.
With regard to the TV ad (d), we noted the voice-over referred to “UK GPs” rather than “NHS GPs” and did not make any reference to the NHS. We further noted that the text, “See website for costs” appeared in small print displayed on-screen throughout most of the ad. We considered that most consumers who saw the TV ad were unlikely to be familiar with Push Doctor or its position as a private healthcare provider. However, because the ad did not reference the NHS and included a statement which made clear that there were costs involved, we considered consumers would not be misled into understanding that the service was provided by the NHS or was free. We therefore concluded that ad (d) did not breach the Code.
We concluded that ads (a), (b) and (c) misleadingly implied that Push Doctor’s service was provided by the NHS, and that ads (a) and (b) also were misleading because they did not make clear that a cost was associated with the service. We concluded that ad (d) did not breach the Code.
On point 1, ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
and
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).
On point 2, ads (a), (b) and (c) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
and
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).
On points 1 and 2, we investigated ad (d) under BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising), but did not find it in breach.
3. Not upheld
We considered consumers would be aware that many medical conditions could only be assessed and/or treated by a doctor in person and that they would therefore approach the claim on that basis. We acknowledged that the claim “You will never go to the doctor’s [sic] again” in the poster ad was a broad statement, and we considered consumers were unlikely to take it literally to mean they could use Push Doctor’s service in relation to every single medical issue they might experience without ever needing to see a doctor face-to-face again. However, we considered they were nonetheless likely to understand it as an objective claim that the advertised service would provide an effective resolution in the vast majority of instances in which they would otherwise have visited their GP; we considered that was particularly the case in the context of the other claims in the ad: “Prescriptions. Fit notes. Referrals” and the reference to nine out of ten patients getting a resolution.
Push Doctor stated that their internal audits showed that 95% of patient’s issues were resolved in one consultation and provided a pie chart to demonstrate this – with headline totals showing the percentage of issues resolved, partially resolved, and not resolved – and additional data relating to January and February 2018 that also showed that over 90% of consultations ended in a resolution. We noted that resolutions were determined by doctors and considered the categories of what was counted as a resolution were in line with what patients might expect. We understood that regular and systematic audits were conducted by GPs who were independent of Push Doctor’s consulting GPs. We further understood that those audits and the processes through which they were conducted were reviewed by the CQC during regular inspections of Push Doctor’s service. We therefore concluded that the claim “You will never go to the doctor’s [sic] again”, as consumers were likely to interpret it, had been adequately substantiated and was unlikely to mislead consumers.
On that point, we investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
(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 it in breach.
4. Not upheld
As referenced above, we considered consumers would be aware that many medical conditions could only be assessed and/or treated by a doctor in person and that those who saw the poster were unlikely to interpret the claim, “You will never go to the doctor’s[sic] again” literally; rather those who saw the poster were likely to interpret the claim to mean that Push Doctor could be used as an alternative in other instances in which they would have visited their GP. We further noted that Push Doctor consultations were with fully qualified GPs who were able to refer patients to other health professionals, including to emergency services if necessary. In that context, we considered the claim was not socially irresponsible.
On that point, we investigated ad (a) under CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising), but did not find it in breach.
5. Upheld
We understood that Trustpilot recalculated a company’s ‘TrustScore’ every time a new review was posted and that because they considered that recent reviews were more relevant to customers than older reviews, therefore older reviews counted less towards the TrustScore than newer reviews. We noted that Push Doctor actively encouraged its customers to post Trustpilot reviews and that it regularly received multiple reviews per day (for example, in July 2017 it received a total of 34 reviews). We noted there was therefore the potential for the overall TrustScore rating to fluctuate over fairly short periods of time.
We considered that while consumers were unlikely to be aware of the specific method used to calculate TrustScore ratings, they would nonetheless expect that a Trustpilot TrustScore displayed in an ad would reflect the advertiser’s current or very recent overall rating, depending on the medium in which the ad was published.
We considered consumers would understand that the TrustScore featured in ad (a), the poster ad, would not necessarily reflect the TrustScore at the time they viewed the ad because of the particular nature of the media. However, we considered that consumers would expect the TrustScore to reflect the most recent rating prior to publication of the ad. We noted the poster ad was first displayed at the beginning of August 2017 and the five-star rating it featured dated from 7 September 2016. While the date the rating was achieved was stated in the small print in the ad, we considered that was not sufficient to avoid misleading consumers because the five-star rating did not reflect the most recent rating before the ad was published. We concluded the rating as displayed in ad (a) was therefore misleading to consumers.
We considered consumers would expect that the TrustScore displayed on Push Doctor’s website would be the rating current at the time they were viewing the website because it would be possible for that rating to be pulled directly from Trustpilot’s website. However, we noted that when the complainants viewed the website, it displayed a five-star rating rather than the four-star rating which was current at that time. We concluded the rating as displayed in ad (b) was therefore misleading to consumers.
Ad (e) was originally posted on Push Doctor’s YouTube channel on 5 October 2016. The web page for the video featured the text “Published on 5 Oct 2016” underneath the video. The video was also the ‘featured’ video at the top of Push Doctor’s YouTube channel page, where text next to it stated “1 year ago”. Further versions of the ad featuring the Trustpilot five-star TrustScore had been posted regularly by Push Doctor since October 2016. All the versions of the ad were visible, in chronological order, on the “Videos” page of Push Doctor’s channel, with text indicating the number of months or years ago the video was uploaded directly underneath a thumbnail of the video.
We considered that consumers who saw the video for the first time in contexts in which the video appeared on its own web page (for example, if they had arrived on the web page via a search) were likely to note the video’s publishing date and expect that the displayed Trustpilot score related to the publishing date rather than a current date. Therefore, we considered in that particular context consumers were unlikely to be misled. We also considered that consumers who saw the ad on the “Videos” page, where videos appeared in chronological order among other videos uploaded by Push Doctor, were also likely to have the same understanding.
However, we noted that Push Doctor made the video its featured video on their channel home page. While text next to the ad referenced to the fact that the video had been uploaded one year ago, we considered that consumers were likely to expect information in the featured video on Push Doctor’s YouTube channel home page would be accurate and up-to-date. Because the Trustpilot TrustScore in the featured video was neither accurate nor up-to-date at the time the complainant viewed the ad, we concluded it was misleading. We further understood that some other versions of the ad featuring a Trustpilot TrustScore that was not current had been uploaded; we considered the references to the five-star score in those ads were also likely to mislead.
On this point, ads (a), (b) and (e) breached CAP Code (Edition 12) rule
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
(Misleading advertising).
6. Upheld
We considered that customer reviews were often useful for consumers considering whether to use a product or service and that negative reviews were as useful as positive reviews in a decision-making process. The pop-up box on Push Doctor’s website included text which stated, “Based on 861 reviews. See some of the reviews here”. We considered consumers would interpret that to mean that the overall TrustScore rating was based on 861 reviews and that the box featured organic content pulled from Trustpilot’s website – in other words, that the pop-up box contained all the most recent reviews that contributed to the rating, rather than containing only the most favourable of recent reviews.
We considered that by omitting reviews that had fewer than four stars, and by not making clear to consumers that reviews had been ommitted, Push Doctor created a favourable impression of the experiences of recent customers that was likely to mislead consumers into using Push Doctor’s service. We concluded that ad (b) was therefore misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
and
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).
Action
Ads (a), (b), (c) and (e) must not appear again in the form complained about. We told Push Dr Ltd t/a Push Doctor to ensure their ads did not imply that they provided an NHS service or that their service was free of cost. We further told them that where their ads included an overall rating of their service, such as a Trustpilot TrustScore, they should ensure that it reflected their current or very recent rating. We told them that if they were selective about which reviews to reproduce on their website they should ensure it was clear to consumers that it was not organic content reflective of all recent reviews.
