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.
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:
Sleep and feeding problems
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...