Thursday, 21 May 2009

BCA v Singh: What The Advertising Standards Authority Said

The UK Advertising Standards Association (ASA) has upheld a complaint against a chiropractor .

Whilst this determination does not directly affect the High Court litigation between the British Chiropractic Association and Simon Singh - an ASA determination does not legally bind the High Court - it may have a couple of extremely interesting - and potentially rather significant - implications.

And, in the meantime, the British Chiropractic Association seems to now be in absurd position of being stranded in the High Court litigating in respect of its promotion of its treatments for colic, when the ASA has effectively prohibited a chiropractor from making such a promotion.

The advertisement in question was:

Dr Carl Irwin and Associates CHIROPRACTORS. Back, Neck, Shoulder, Arm and Leg Pain, Sports Injury, Joint Problems, IBS, Colic, Learning Difficulties, Cranial Treatment for Mothers and Babies. To discuss any area of your health with our Doctors, call for a FREE Consultation.

(Emphasis added.)

The complaint was twofold.

First, which was upheld, it was about the use of the title "Dr".

But more interestingly (at least for me) it was whether the chiropractor "could substantiate the implied claim that their therapies could successfully treat some of the conditions mentioned, in particular IBS, colic and learning difficulties". And this was also upheld.

At this point, it is important to remember that the ASA's remit is simply to assess advertising against the advertising code.

The chiropractor facing this complaint sent to the ASA a "list of references and abstracts relating to chiropractic and the treatment of IBS (Irritable Bowel Syndrome), colic and learning difficulties to substantiate the claim "IBS, Colic, Learning Difficulties, Cranial Treatment for Mothers and Babies" (emphasis again added).

We do not currently know what this information was: the ASA may have been provided with more or less than the BCA were planning to put before the High Court.

Nonetheless, the information provided did not impress the ASA:

"The ASA acknowledged that manipulative therapies used by suitably qualified practitioners had been shown to be effective in treating back and joint pain and minor sports injuries. We noted the journal abstracts, conference paper reports and article references provided by Dr. Carl in support of the claim to treat IBS, colic and learning difficulties.

"In relation to the chiropractic treatment of IBS we noted the evidence provided included a 2007 randomised controlled pilot study relating to osteopathy and another randomised controlled study where results involving the treatment of IBS with osteopathy were described as "promising"; we noted, however, that those studies referred to osteopathy, not chiropractic.

"In relation to the chiropractic treatment of colic, we noted a number of reported un-controlled individual case studies where infants had been treated with chiropractic. We also noted several larger studies, one of which was a "prospective case study", another of which was based on "a retrospective uncontrolled questionnaire", another which was a "pilot study" presented at a conference and a fourth which was a blinded randomised controlled trial that measured the "short-term effect" of spinal manipulation on infantile colic.

"In relation to the chiropractic treatment of learning difficulties we noted a 2007 literature review of the effects of chiropractic on individuals with learning disabilities and dyslexia in which the reviewers considered that none of the studies met all of their pre-defined methodological criteria."

Accordingly, the ASA found that the chiropractor was in breach of the following particular advertising code provisions on Substantiation, Truthfulness, and in respect of Health and Beauty Products and Therapies:

3.1 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.

Relevant evidence should be sent without delay if requested by the ASA or CAP. The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication. The full name and geographical business address of marketers should be provided without delay if requested by the ASA or CAP.

7.1 No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.

50.1 Medical and scientific claims made about beauty and health-related products should be backed by evidence, where appropriate consisting of trials conducted on people. Where relevant, the rules will also relate to claims for products for animals. Substantiation will be assessed by the ASA on the basis of the available scientific knowledge.

However, it appears that the following provision was also examined but found not to have been breached:

50.3 Marketers should not discourage essential treatment. They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional (eg one subject to regulation by a statutory or recognised medical or health professional body). Accurate and responsible general information about such conditions may, however, be offered.

The ASA regulates advertising and so, in one way, this welcome ruling needs to be kept in perspective. Had the determination gone the other way (and sometimes one cannot explain decisions by courts or regulators), it would not scientifically validate chiropractic for any ailment any more than this ruling invalidates it.

That said, this ruling could be important. As Dave Gorman points out with characteristic good sense:

"In light of the ASA ruling, it seems to me that when the BCA produced the Happy Families leaflet they were in effect giving their members bad advice - however sincerely meant it was at the time. Surely the BCA should now make best efforts to correct it. I think the only responsible action would be to tell their members not to make such claims because they cannot be substantiated. This is the only responsible thing to do until there is new evidence that can substantiate such claims. To not do so would be to fail to act in the best interests of their members."

Indeed - and also see Gimpy and New Humanist.

But the direct implications of this ASA determination are potentially serious from a professional as well as from a common sense point of view.

As the truly excellent Alan Henness ("Zeno") of ThinkHumanism pointed out to me, compliance with the ASA in advertising is actually a formal professional obligation of every chiropractor registered under the General Chiropractic Council (GCC).

The GCC's Code of Practice and Standards of Proficiency states at C1.6:

[Chiropractors] may publicise their practices or permit another person to do so consistent with the law and the guidance issued by the Advertising Standards Authority. If chiropractors, or others on their behalf, do publicise, the information used must be factual and verifiable. The information must not be misleading or inaccurate in any way. It must not, in any way, abuse the trust of members of the public nor exploit their lack of experience or knowledge about either health or chiropractic matters. It must not put pressure on people to use chiropractic.

Now as the ASA had already issued fairly restrictive guidance on chiropractic, see here, this new ruling makes it clear what the advertising obligations are of chiropractors are in respect of colic under the GCC Code of Practice.

Whatever else it may be, for any chiropractor to happily promote chiropractic for colic would now seem to place them in breach of their own professional obligations.

And so it is not now only a matter for the ASA or Trading Standards: it appears to me that any chiropractor promoting chiropractic for the treatment of colic can now face a complaint to and investigation by the General Chiropractic Council.

And so where does this leave the British Chiropractic Association? I simply do not know.

On one hand, it is not open to any reputable professional association to encourage its members to be in breach of professional obligations. To do so would be a very serious matter indeed. And here is certainly no suggestion that this is yet the case with the British Chiropractic Association.

On the other hand, the British Chiropractic Association should urgently clarify its positon on the treatment of colic and, in particular, the status of the Happy Families leaflet, which of course stated (emphasis added):

"There is evidence to show that chiropractic care has helped children with the following symptoms:

Prolonged crying
Sleep and feeding problems
Breathing difficulties
Frequent infections, especially in the ears"

It would appear to me that, at least from the date of this new ASA adjudication, making such a claim for the treatment of colic could possibly be contrary to the GCC Code of Practice.

If so, it would render odd that the British Chiropractic Association still wishes to litigate in respect of its promotion of chiropractic for the treatment of colic when such a promotion by its members would now seemingly be a breach of their professional obligations...


Simon said...

Nice article.

But that's just one ASA complaint. I do hope it's now followed up by everyone reporting their local chiropractor.

BSM said...

Can a complaint be lodged with the ASA against the BCA itself for the leaflet that is at the heart of the libel action? Given that it would seem likely that the ASA would make a judgement consistent with the one being described here, it would not constrain a High Court judge's decision-making, but it might have a major impact inthe court of public opinion.

BSM said...

I was thinking as typing the above comment, that the BCA might contend that the leaflet is no longer part of their advertising. I understand that it is not available from them on the interweb, but I am not aware that they have acted to declare that its content is incorrect and to distance themselves from its content. The text of the leaflet itself is copyrighted 2006, but that does not equate to a "valid until" date.

If someone had a physical copy of the leaflet, then I would have thought that it would form a reasonable ground for submitting a complaint to the ASA. The BCA would then have the option either before or after an ASA ajudication to make a conscious and active statement that its content is in part unsupportable under one or more of the code provisions which you have cited. Whereas an ASA ajudication is not binding on a judge, it would be interesting to know how the introduction as evidence of such an active withdrawal would influence the outcome of Simon's case, which centres on how the words "happily" and "bogus" relate to the BCA at the time leaflet was originally published.

Beacon Schuler said...

You might be interested that the GCC's own Patient Information literature suggests chiropractic "may" lead to improvements in people suffering from colic too. I suspect that the GCC believe they are saved by the softer claim "may" but know for a fact that the ASA would view that as an implied claim.

HolfordWatch said...

Given the amendments to the legislation, might it be appropriate to draft a formal letter to Trading Standards - although this would be best placed as a complaint about the use of chiropractic for conditions for which there is no strong supportive evidence, maybe the use of some exemplar cases would be useful as the basis of the complaint?

Cf the Office of Fair Trading Unfair Commercial Practices Directive (pdf) and the Nutrition and Health Claims regulations (pdf).

Michael Gray said...

Can the ASA be sued for defamation?
The ASA has effectively ruled that such claims are BOGUS.

Martin said...

I've worked my way through all the ASA rulings on chiropractic in their archives and the implications: see here.

Dave Gorman said...

While we don't know what evidence "Doctor" Carl Irwin & Associates put forward to support their claims regarding colic it is possible to have a good guess by looking at their website:

In the ASA's assessment they note a number of - and type of - studies they've seen and acknowledge that it requires further research.

I hope the BCA agrees.

Dr Aust said...

Dave Gorman beat me to it in pointing out that colic still gets an extended mention on Dr Carl's website. Incidentally, the website is headlined:

"Dr Carl Irwin and Associates - Chiropractors"- and refers to "Dr Carl" a bunch of times on the front page.

Now, I seem to remember reading somewhere that "claims on company websites" did not fall within the ASA's purview (can Jack confirm?) - which seems to me to raise the surreal prospect of a chiropractor's website being able to repeat things which the ASA had clearly declared unacceptable in their advertising.

Anyway, "colic" features on Dr Carl's site under the tab "Why patients see us". Though, perhaps following the ASA ruling, the website does not actually make any direct and specific claims about chiropractic treating colic - unlike many other chiropractors' websites, incidentally. For those interested, Dr Carl's site says:

"If a baby is inconsolable, it's hard to know if it's a digestive disturbance. Consider another explanation. Upon examination, we often find spinal distortions in the baby's upper cervical spine. These babies are probably suffering from head and neck pain."And then later:

"Not a CureBut chiropractic isn't a treatment for colic! If vertebral subluxation is present, interfering with the proper function of any part of the body, restoring proper nervous system control allows the body to heal. This can happen regardless of age and regardless of what the symptoms are called."So it would appear that in Dr Carl's view (at least as of today) what we call colic is really "cervical spine subluxation", which chiropractors claim they can treat. So he is not claiming to treat colic. Errrr....

Of course, medical science has resoundingly failed to find any evidence whatsoever for the kind of "vertebral subluxations" chiropractors believe in, which are defined (rather conveniently, you might think) as being undetectable by any medical imaging technique. Mainstream medicine says you have a "vertebral subluxation" if you have a physical displacement of the vertebrae, something which is visible with various types of imaging. In chiropractic, no vertebral displacement is visible but the practitioner insists that a "functional subluxation" is there anyway. Then they tell you they can fix it if you pay them to manipulate your spine.

Now, you might think that this is a nice racket they've got going. Of course, I couldn't possibly comment.

Anonymous said...

There's an "alternative medicine" store in a shopping mall just off Oxford Street. I keep meaning to go and photograph their adverts in the wondow, in which they claim all sorts of things are treatable...