Advertising Standards Authority Adjudication

9 April 2008

The Nutrition and Health Institute
1 Ellora
Old St John Road
Helier, Jersey
JE2 3LG

Number of complaints
: 5

Ad

A national press ad, for the Nutrition and Health Institute, was headed "FREE TRIAL". Below, text stated "Every hour one man dies of PROSTATE CANCER. The Nutrition and Health Institute are conducting a FREE TRIAL of a new natural supplement that we believe in conjunction with changes to diet and lifestyle could reduce both getting up at night and the likelihood of getting Prostate Cancer. If you are getting up at night to go to the bathroom or sometimes finding it slow to start, finish or experience urgency, frequency or pain when going to the bathroom, the most likely cause is an enlarged prostate. It has been estimated that one in three men with an enlarged prostate will get Prostate Cancer. If you are getting up at night you may therefore benefit from this FREE trial. To apply to join this national trial simply leave your name, and telephone number on FREEPHONE 0800 XXXX. Please note that to proceed with your application, you will need a credit card to pay £4.95 as a contribution to postage and packing".

Issue

1. Five readers believed the ad was misleading because it was unclear who the advertiser was.

2. Four of them, including a Consultant Urological Surgeon, queried whether the trial was genuine.

3. Two of the readers believed the ad misleadingly implied that taking part in the trial would prevent prostate cancer.

4. Three of the readers believed the claims in the ad, "Every hour one man dies of PROSTATE CANCER" and "It has been estimated that one man in three with an enlarged prostate will get Prostate Cancer", used fear of cancer to promote the trial.

5. One of the readers believed the claims "Every hour one man dies of PROSTATE CANCER" and "It has been estimated that one man in three with an enlarged prostate will get Prostate Cancer" could not be substantiated.

6. One of the readers believed that the ad could discourage people from seeking essential treatment for serious conditions from a suitably qualified medical professional.

7. Three of the readers believed the claim "Free Trial" was misleading because there was a charge of £4.95 for postage and packaging.

The CAP Code: 3.1;7.1;32.1;50.1;50.2;50.3;50.14;8.1;22.2;50.21

Response

The Nutrition and Health Institute (NHI) said they had been operating for five years, with the aim of promoting the concept that food and lifestyle were at the core of maintaining good health and resisting disease. They said they had provided information and advice about nutrition and lifestyle free of charge to many thousands of men over that period. They said the food supplements they sold were a commercial activity.

They said the free trial promotion had finished and they did not intend to repeat the promotion or use the ad in the near future.

1. NHI believed it was clear from the ad that they were the advertiser. They said, in addition, respondents were given their helpline telephone number and web address. They said the website contained detailed information about NHI and their function, and the invoices they sent to customers gave their address.

2. NHI said the ad did not claim to be a medical or clinical trial but just a "trial". They explained that every respondent was explicitly told that the purpose of the trial was not to test the efficacy of the supplements but to have the opportunity to see if it worked for them.

NHI said, although not a clinical trial, they contacted customers to see whether the supplements worked for them and they kept a record of the responses. They believed their trial was similar to a formal clinical trial but without the results being double blind or published. They believed the use of the word 'trial' in the ad was legitimate, accurate and not misleading.

3. NHI believed the claim "... a natural supplement that we believe in conjunction with changes to diet and lifestyle could reduce both getting up at night and the likelihood of getting Prostate Cancer ..." made clear that the supplement's role in potentially reducing the likelihood of getting prostate cancer was not a proven fact, but a belief held by NHI. They said they had used "could" instead of "would" because the results varied from person to person and, as stated in the claim, the natural supplements could only work in conjunction with changes to diet and lifestyle.

They said nothing could guarantee the prevention of prostate cancer and believed it was clear from the wording they had used that the supplements could help "reduce" "the likelihood" of getting prostate cancer. They believed the ad had not suggested that taking part in the trial would prevent prostate cancer but it had implied that it was only supplements, in conjunction with long-term changes to diet and lifestyle, that might have that effect.

4. NHI believed that most men were fully aware of the dangers of prostate cancer and did not believe the ad created or added to any sense of fear. They said the ad sought to mobilise men who already knew that prostate cancer could kill to take preventive action rather than just being frightened. They believed the ad stated an irrefutable fact and was similar to Government warnings that cigarettes kill, in that it could motivate some men towards taking preventative action. They believed that the ad was promoting hope, rather than fear, because it offered the idea that prevention was possible.

5. NHI said the claim "Every hour one man dies of PROSTATE CANCER" was based on a government statistic that showed 9,491 men died of prostate cancer in 1999, which they calculated equated to over one death every hour.

They said they understood that the majority of men with an enlarged prostate (BPH) were over 50 years old. They said the claim "It has been estimated that one man in three with an enlarged prostate will get Prostate Cancer" was based on the results of an independent American medical report, which said 33% of men over 50 would be diagnosed with prostate cancer. NHI believed the figure was likely to be higher because of those men who went undiagnosed.

6. NHI said the ad suggested that taking the supplements might prevent getting up at night and perhaps prevent a serious disease; they did not consider that getting up at night to go to the toilet was a serious condition. They believed the ad referred to prevention, rather than treatment, for a serious medical condition. They believed the ad was unlikely to discourage people from seeking essential treatment for a serious medical condition and thought it unlikely that people would be discouraged from taking advantage of free NHS treatment in preference to paying for supplements.

7. NHI said the delivery charge was made clear in the ad and was the true cost of delivery. They explained that they used an outsourced fulfilment company in Guernsey to deliver the trial supplements at a cost of £5 for each order. They believed the CAP Code allowed them to reclaim the cost of freight or delivery on free trial offers.

Assessment

1. & 2. Upheld
The ASA acknowledged that NHIs name was included in the ad but considered that, with no further clarification, it gave the impression of being a medical or nutritional organisation and not a commercial company offering free samples.

We considered the combination of the headline claim and the claims referring to NHI "conducting" a free trial and readers "applying" to join a "national" trial were likely to be understood by readers to mean that, if they responded to the ad, they would be taking part in a national medical or clinical trial for the purpose of evaluating the food supplement, not that they were simply being offered a free sample. Because the nature of the offer was unclear, we concluded that the ad was misleading.

On points 1. & 2., the ad breached CAP Code clauses 7.1 (Truthfulness) and 22.2 (Identifying marketers).

3. & 6. Upheld
We noted NHIs assertion that, rather than making a statement of proven fact, the ad expressed their belief that the supplements could reduce the likelihood of getting prostate cancer when used in conjunction with changes to diet and lifestyle. However, we considered that the ad implied that, with changes to diet and lifestyle, the supplements could help prevent prostate cancer. Although NHI quoted a number of research reports on the effect of diet and lifestyle in the prevention of prostate cancer, we were concerned that, by giving the impression that the supplement could be taken to prevent disease, the ad made unauthorised medicinal claims.

We were also concerned that the ad referred to a serious medical condition and might discourage readers from seeking help from a suitably qualified medical practitioner. We concluded that the ad breached the Code by making medicinal claims relating to disease prevention and referring to a serious medical condition and potentially discouraging consumers from seeking essential treatment for serious or prolonged medical conditions.

On points 3. & 6., the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 8.1 (Matters of opinion), 50.1 (Scientific substantiation), 50.2 (Self-diagnosis), 50.3 (Discouragement of essential treatment) and 50.21 (Vitamins, minerals and other food supplements).

4. & 5. Upheld
Although we noted the claim "Every hour one man dies of PROSTATE CANCER" was based on a nine-year-old government statistic, we understood that published statistics for 2005 showed that around 10,000 men in the UK died from prostate cancer. We therefore considered that the claim was substantiated.

We nevertheless understood that an enlarged prostate (BPH) affected 50% of men over the age of 50, but BPH was not usually cancerous and did not normally develop into cancer. We noted the claim was based on a 2005 lecture that stated 33% of American men diagnosed with cancer in 2004 had prostate cancer, but it did not state that these men had BPH which had developed into cancer. We considered that the claim "It has been estimated that one man in three with an enlarged prostate will get Prostate Cancer" exaggerated the link between BPH and prostate cancer and the ad was misleading on this point.

We considered that the references to a serious medical condition, the statistics of fatalities and chances of developing prostate cancer and references to symptoms of the disease, which could also be associated with non-cancerous BPH, together with readers expectations that the supplements might prevent prostate cancer played on readers fears and anxieties. We concluded that the ad breached the Code on this point.

On points 4. & 5., the ad breached CAP Code clauses 3.1 (Substantiation), 50.1 (Scientific substantiation) and 50.14 (Use of fear).

7. Upheld
We acknowledged that the fulfilment company charged NHI £5 for each order and noted that the ad included the cost of postage and packaging. However, we reminded NHI that the Code allowed marketers to claim a trial or offer as free if consumers pay no more than the true cost of freight or delivery; it did not allow them to charge for packing, handling or administration. We concluded that, because the charge was for more than just postage, the trial could not be described as free and the claim was misleading.

On this point, the ad breached CAP Code clause 32.1 (Free offers).

Action
We told NHI not to repeat the ad and to seek CAP Copy Advice before advertising again.

Adjudication of the ASA Council (Non-broadcast)


Advertising Standards Authority,
Mid City Place, 71 High Holborn, London, WC1V 6QT, United Kingdom

This article was posted on April 16, 2008.

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