Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
The website www.numan.com for Numan, a company providing treatment for men’s health issues, seen on 20 April 2022, included a page headed “fear nothing blood test”. Text underneath stated “FREE if we don’t find anything*”. Small text at the bottom of that section of the page, under a button labelled “Get started”, stated “Claim your money back within 90 days of purchasing your first test if no flags are found. Why? Because it takes guts to explore your health. And courage should be rewarded. View full terms”.
Under the heading “Confront concerns”, text stated “Face your health fearlessly. Be proactive. Tackle concerns before they become a problem”, and listed “Tiredness”, “Weight changes”, “Low mood”, “Insomnia”, “Hormone imbalances”, “Vitamin deficiency”, “High cholesterol”, “Erectile dysfunction” and “High blood sugar”.
Under the heading “Check important biomarkers”, text included “Get clarity. Measure up to 21 of the most important health indicators to get a snapshot of what’s happening inside your body” and listed 21 biomarkers.
Under the heading “Control your health”, text included “Use your results to help manage your health confidently and correctly […]”, and listed “Heart health”, “Nutrition”, “Weight management”, “Diabetes”, “Thyroid health”, “Anaemia”, “Kidney health” and “Liver health”.
Text underneath stated “The test is FREE if we don’t find anything*” and included a button labelled “GET STARTED”.
Further text on the page included information that Numan was regulated by the Care Quality Commission, the medical experts that worked for them, the blood test process, reviews from consumers who had had the blood test, links to articles related to the topic of blood tests, and frequently asked questions.
Under the heading “How Numan works”, there was information about their free online consultations, free 24-hour treatment delivery, and that they offered continuous care. Text also included “Cancel anytime If you’re not happy with the service, or simply don’t need treatment anymore, you can cancel anytime”.
At the bottom of the page, text included “Start your online consultation now” and included a button that was labelled “Get started”.
When “Get started” was clicked, website visitors were presented with an on-screen message that explained that, by clicking “Next”, they confirmed they gave permission for their information to be viewed by Numan’s clinical team, laboratory partners and clinical partners.
When “Next” was clicked, website visitors were then prompted to answer questions about their health goals, ethnicity, sex, height, weight, alcohol consumption, smoking habits, medication use, supplement use, recreational drug use, allergies, intolerances, medical conditions, stress, sleep, sex life, physical activity, dietary intake, and whether they would like their GP to be informed of the consultation.
Website visitors were then directed to a page headed “FREE if we don’t find anything*”. Underneath, text included “from £4.67/biomarker or £0.00, if none of your biomarkers are outside the normal range Test delivered quarterly Pause or cancel anytime”. Small text underneath included the same text as referenced above that explained the circumstances for when consumers could claim their money back.
Under the heading “Manage your health fearlessly”, there was text similar to that referenced above about confronting concerns, checking important biomarkers and controlling your health.
Under the heading “How it works”, text included “[…] 6 And if all your biomarkers are within a normal range…claim a FULL refund”.
When “Continue” was clicked, website visitors were directed to a page and asked to select their preferred test; either the Fear Nothing CORE test which was priced at “£98.00 / kit” and checked 17 biomarkers, or the Fear Nothing PLUS test which was priced at “£128.00 / kit” and checked the same 17 biomarkers plus additional biomarkers for “Diabetes” and “Anaemia”. The page also included information about an optional phone consultation, for an additional £30, to discuss the blood test results with a clinician.
When the preferred blood test, and whether they wanted to add the phone consultation, had been selected, website visitors were directed to the “Order summary” page and required to fill in “1 Account details”, “2 Personal information” and “3 Delivery address”.
On the right-hand side of the page, a box included text that included “Cancel anytime Fear Nothing Blood Test £98.00/quarterly”. Underneath text stated, “FREE if we don’t find anything*” and included small text that stated “Claim a full refund within 90 days of purchasing your first Fear Nothing Blood Test Kit if no red flags are found on any tested biomarkers. Not applicable with other promotions. Promotion may end at any time. Full refunds on tests purchased during the promotional period will be honoured”. Underneath was information on the delivery charge, order total and current offers that could be added to the order.
Below the box was a Trustpilot star rating and text underneath that included “Cancel anytime”.
Issue
1. The complainant, a GP, who understood that the tests could produce false positives, challenged whether the claim “FREE if we don’t find anything” misleadingly implied that there was something medically wrong if a biomarker was outside of the normal reference range.
The ASA also challenged whether:
2. the claim “FREE if we don’t find anything” was misleading because consumers had to pay for the test upfront and because it was unclear how many people would be eligible for the “free” test;
3. the ad was misleading because the price of the test was material information that was only provided after consumers provided personal information; and
4. the ad was misleading because it did not make sufficiently clear that by purchasing the test, consumers would be enrolling in a paid-for subscription.
Response
1. Vir Health Ltd t/a Numan said that they did not believe that the average consumer would understand the claim “FREE if we don’t find anything” to mean that a user of the Fear Nothing Blood Test would have a medical problem if a biomarker was found to be outside of the normal range, and that it was likely that a medical problem would be found.
They said that the word “anything” was being equated with “a medical problem”, but that interpretation was not justified or encouraged by the surrounding information. The website referred to measuring a selection of “the most important health indicators to get a snapshot of what’s happening inside your body” and used the results “to help you manage your health confidently and correctly” and “to make healthy, informed lifestyle choices that benefit you in the long run”.
This information was intended to help consumers feel empowered to explore and take control over their health. They believed that the language was highly unlikely to instil fear in prospective users of the test or make them believe the test would almost certainly reveal a medical problem.
They said that false positive results could occur with any diagnostic test, and that this was not an issue that was unique to Numan’s Fear Nothing Blood Test. The laboratory that they used was fully accredited and approved by UKAS to ensure the most reliable results.
Between 4% and 10% of users were found to be eligible to receive their first Fear Nothing Blood Test free of charge.
2. They did not believe that consumers would be misled by “free” in the claim “FREE if we don’t find anything”. When the claim first appeared on the website it was asterisked and closely accompanied by text that stated “Claim your money back within 90 days of purchasing your first test if no flags are found”. It was made clear at the first possible opportunity that the test must be paid for upfront, with a refund potentially being available following delivery of the results. The same qualifying text accompanied the claim when it appeared later in the customer journey.
However, they recognised that the term “free” should not have been used in the context of a money-back offer and would stop using it.
3. They did not believe that a transactional decision was made at the time a consumer clicked “Get started” on the Fear Nothing Blood Test website. The transactional decision was not made until the checkout page. The price of the blood test was provided on the “How it works” page, which was three steps prior to the checkout page. Therefore, consumers had ample opportunity to consider the price of the test prior to make a transactional decision at the checkout.
They did not believe that the website was misleading because of the price of the blood test not being stated on the main page, as the price was stated well in advance of the consumers reaching the checkout page. However, they recognised that they could provide material information, including the price of the blood test at an earlier stage of the consumer journey, and said they would be implementing those changes.
4. On the “How it works” page, three steps prior to the checkout page, text stated “Test delivered quarterly” and “Pause or cancel anytime”. On the next page in the consumer journey, on the “Order summary” page, there was a summary box that made clear that the quoted price would be charged quarterly and that consumers could cancel anytime.
They therefore believed that it was made clear to consumers, prior to making a transactional decision, that by purchasing the Fear Nothing Blood Test they were enrolling in a subscription arrangement of quarterly payments and test deliveries. They did not believe that the website was misleading.
However, they recognised that they could make clearer that by purchasing the blood test the consumer would be enrolling in a subscription arrangement at an earlier stage of the consumer journey and said they would be implementing those changes.
Assessment
1. Upheld
The ad stated, “FREE if we don’t find anything” and included qualifying text that stated “Claim your money back within 90 days of purchasing your first test if no flags are found”. The terms and conditions included “A flag occurs if a biomarker falls outside of “normal” ranges for your gender and age”. The ASA understood that consumers who had results within the ‘normal’ ranges for all of the tested biomarkers would have been eligible to receive their money back on their first test.
We considered that consumers would understand “if we don’t find anything” and “no flags are found” to mean that, if a biomarker was outside of the ‘normal’ range, it indicated that something was likely to be of medical concern. The test name, Fear Nothing Blood Test, and the references in the ad to “Confront concerns” and “Control your health” added to that impression.
We noted that Numan said they used a UKAS accredited laboratory. However, we understood that blood test results could be inaccurate and that false positives could occur. We also understood that there was debate within the medical community about using reference ranges to determine whether a result was ‘normal’ or not. In particular, this was because ‘normal’ reference ranges were based on the central 95% of results measured from a healthy population. The remaining 5% were in fact still healthy. Therefore, a result outside of the ‘normal’ range did not necessarily indicate that something was medically wrong.
At least 90% of people who had used the Fear Nothing Blood Test had a result for at least one biomarker outside of the ‘normal’ range. We considered that this was a very high proportion of people whose test result indicated that they likely had something medically wrong with them. There was no information in the ad to inform consumers that false positives could occur or that their test results could be inaccurate. Therefore, consumers would be unaware that a result outside of the normal range could occur for reasons other than being a true positive result.
We further considered we had not seen evidence that a single biomarker outside a reference range was sufficient to indicate that something was medically wrong. The result would need to be interpreted by a healthcare professional in the context of other factors including the result of other biomarkers and factors specific to the individual, such as their medical history and lifestyle. The ad did not include any information for consumers explaining the potential meanings of a result outside of the ‘normal’ range, other than the implication that it meant something was medically wrong.
Therefore, because the claim implied that a biomarker outside the normal range indicated that something was likely to be medically wrong, when that was not the case, we concluded that the claim was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.9 (Qualification).
2. Upheld
The CAP Code required that marketing communications must not describe a product as “free” or similar if the consumer had to pay anything other than the avoidable cost of responding and collecting or paying for delivery of the item. The CAP Code also stated that marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a “free” offer.
We understood that all consumers had to pay the full price of the test upfront, but, if all the tested biomarkers were within the ‘normal’ ranges, they were eligible to get a full refund. This only applied to the consumers’ first blood test, and they were not able to get a refund on any subsequent blood tests even if their results were all ‘normal’. The claim included qualifying text that stated “Claim your money back within 90 days of purchasing your first test if no flags are found”. We considered that consumers would be aware that they had to purchase the test and would only be eligible to get their money back if all their results were ‘normal’. Nonetheless, because the test was described as being “free” when in fact consumers had to pay for the test, we concluded that it was misleading to describe it as free.
We noted that only between 4% and 10% of users had been eligible for the refund, which we considered was low. We considered that because it was not made clear in the ad what proportion of people would be eligible to get the test for “free”, consumers would not be aware when purchasing the test how likely it was that they would get it for “free”. Therefore, because the majority of consumers were not able to get the test for “free” and they would not know that when purchasing the test, we further considered that the claim was misleading in that regard.
Because consumers had to pay for the test upfront and it was not clear how many users would be eligible for the “free” test, we concluded that the claim “FREE if we don’t find anything” was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.9 (Qualification) and 3.23 (Free).
3. Upheld
The CAP Code required that 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. For marketing communications that quoted prices for advertised products, material information included the price of the advertised product.
We understood that the price of the test was £98 or £128, depending on whether a consumer selected to purchase the test that tested 17 biomarkers or 21 biomarkers. There was no information on the main page of the website regarding the price of the blood test, other than the reference to it being “FREE if we don’t find anything*”. We considered that the reference to “free” was a price claim and that the ad therefore needed to include the price of the advertised service. Before a consumer was able to see the price of the test, they had to click “Get started” and answer a series of questions giving personal information and details about their health and lifestyle, they were then directed to a page that had information about the test and, after clicking “Continue”, they were then directed to another page that detailed the price of the test. The price of the tests was not dependent on the personal information provided. We considered that the price of the test was material information that was likely to influence a consumer’s transactional decision and should have been made sufficiently clear from the outset before they input any personal information.
Because the ad had omitted material information regarding the price of the test, we concluded that it was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1, 3.3, 3.4 and 3.4.3 (Misleading advertising).
4. Upheld
We understood that by purchasing a Fear Nothing Blood Test the consumer would be automatically enrolled onto a quarterly subscription service, where every three months they would be sent a blood test for which they had to pay for if they did not cancel.
Towards the bottom of the main page of the website, under the section “How Numan works” there was a box that had an icon of an “off” switch and text that stated, “Cancel anytime If you’re not happy with the service, or simply don’t need treatment anymore, you can cancel anytime”.
We considered that, in the absence of any further information elsewhere on the page in relation to a subscription service, this information did not make clear to consumers that by purchasing a blood test, they would be entering into a quarterly subscription service. We considered that level of commitment was material information likely to influence a consumer’s transactional decision and needed to be made sufficiently clear from the outset.
As referenced above in point 3, after consumers had clicked to “Get started” and answered a series of questions, they were directed to a page that had information about the test. On this page it stated, “Test delivered quarterly” and “Pause or cancel anytime”. Additionally, once consumers got to the checkout page, text stated “Cancel anytime” and “£98.00 / quarterly”. However, we considered that this information was only available to consumers once they had made a transactional decision to “Get started” and shared their personal information.
Because the ad had omitted material information that by purchasing the test consumers would be enrolling in a paid-for subscription, we concluded that it was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising).
Action
The ad must not appear again in the form complained of. We told Vir Health Ltd t/a Numan not to imply that there was something medically wrong on the basis that one biomarker was outside of the normal reference range. We also told them not to claim that the test was free if the consumer had to pay for it upfront. We also told them not to omit material information, including the price of the test and to make clear upfront that by purchasing the test they would be enrolled in a paid-for subscription.
CAP Code (Edition 12)
3.1 3.3 3.4.3 3.7 3.23 3.9 3.4
