The ASA have as their remit demands, consistently placed the protection of consumers against false advertising above the demands of advertisers and other vested interests. H:MC21 (Homeopathy, Medicine for the 21st Century, a “charity” which is unusual in having a name that is blatantly factually inaccurate) were slapped down by the ASA for a false advert in the New Statesman; they are still apparently seehting about this and about the adjudications against fellow fraudsters such as Steve Scrutton who runs a blog inaccurately titled “Homeopathy: Safe Medicine” (it is of course neither).
This is their latest attempt to get out of jail free by intimidating the ASA.
H:MC21 Report on the Advertising Standards Authority’s Ruling against their Advert in the New Statesman: An annotated version
In November 2011 H:MC21 appealed against the ruling of the Advertising Standards Authority (ASA) on our advert in a Care supplement of the New Statesman, published in October 2010. In December 2012 we received the Draft Recommendation from the new ASA investigation.
ASA relied on science, which we hate because it does not support our beliefs. We challenged this. ASA did not accept our Revealed Truth. The bastards.
H:MC21 trustees have pursued this case diligently, and they consider that it offers clear evidence that the Advertising Standards Authority is neither abiding by its guidelines, nor acting within its remit. It appears to be pursuing an ideological position of rejection of any advertising of homeopathy (or other complementary and alternative medicine (CAM) therapies) without regard for the available science.
H:MC21 Trustees are practising homeopaths and thus direct beneficiaries of the charity’s political lobbying. We’ll keep quiet about that flagrant breach of the Charities Act and instead try to pretend that by protecting consumers from claims which cannot be substantiated, the ASA ar ein some way evil. Because what consumers need, most of all, is to be deluged with scientifically unsupportable medical claims.
Well, OK, what the homeopathy industry really needs to reverse its terminal decline is to be allowed to deluge consumers with scientifically unsupportable medical claims. But it’s the same thing, more or less.
As a result, H:MC21 is planning a protest outside the ASA offices in London when the charity is finally able to publish to the media the whole truth about this investigation. We call on all those interested in the right of patients to choose what medical approach to use for their own bodies to support this protest, especially homeopaths, other CAM practitioners, patients, and representative organisations. We shall set at date for the protest at the earliest possible opportunity.
We think that by trying to intimidate the ASA we can get get enough publicity to allow us to force them to accept scientifically unsupportable claims.
H:MC21 would also like to raise a fighting fund in order to challenge the ASA’s decision, should that be necessary.
H:MC21 is running out of cash (Charity Commission filings show income of under £5k). We can’t effectively
promote our financial interests reverse the tide of science without more cash.
Issues with the H:MC21 case
After more than two years, we are still profoundly concerned at the approach being taken by the ASA. In conducting its investigations, the ASA appears to us to be ignoring its own guidelines. Instead of basing its assessments on “the available science”, it appears to be relying on and endorsing an ideological position which is in conflict with good practice in medicine, which has no scientific basis, and which is dangerous for patients.
After more than two years, we are still profoundly concerned at the approach being taken by the ASA. In conducting its investigations, the ASA appears to us to be relying on science. It is basing its assessments on the available science, it appears to be ignoring on and discounting an ideological position which is in conflict with good practice in medicine, which has no scientific basis, and which is dangerous for patients.
The ASA has provided us with no secure scientific basis for its opinions, but has relied on oblique references to questionable studies. At the same time it has dismissed evidence supplied by H:MC21 to the effect that the ASA’s arguments are not justifiable, even though, on these matters, much of H:MC21’s evidence comes from medical experts addressing issues of medicine in general, often without the least regard for homeopathy or the homeopathic perspective. As such the ASA is ignoring not just specifically homeopathic information, but also a much more widely recognised understanding of medicine.
The ASA has provided us with a secure scientific basis for its opinions which we ignore because we do not like it, and has relied on references to studies we assert are questionable because they don’t support our beliefs and financial interests. At the same time it has dismissed a snowstorm of pseudoscience supplied by H:MC21 which has already been included in the scientific assessments. They ha ve also refused to accept that problems with medicine justify quackery even though we have conclusively proved that plane crashes amply justify the promotion of magic carpets. As such the ASA is ignoring not just specifically homeopathic misinformation, but also a much more widely recognised misunderstanding of medicine.
The ASA has sought expert advice on homeopathy apparently with little regard to CAP Code 12.2, which states that “Health professionals will be deemed suitably qualified only if they can provide suitable credentials; for example, evidence of: relevant professional expertise or qualifications; …”. We consider that this statement means that “relevant professional expertise or qualifications” must include expertise or qualifications in homeopathy. We are also concerned that the ASA does not appear to have made any straightforward checks on the accuracy of the expert advice, and H:MC21 considers this advice to be seriously inadequate, and even wholly inaccurate on some points. In the highly polarised environment of discussions of homeopathy, we would have expected the ASA to be scrupulous about making sure that any expert was demonstrably impartial.
The ASA has sought expert advice on homeopathy apparently in line with CAP Code 12.2, but we like to pretend that “Health professionals will be deemed suitably qualified only if they can provide suitable credentials; for example, evidence of: relevant professional expertise or qualifications; …”should be interpreted as “only qualified magicians may comment on magical claims”. We ignore the lack of any accredited training in homeopathy in the UK, and the fact that there is no licensing body and no requirement for homeopaths to be trained, licensed, certified, insured or anything else. We also ignore He Who Shall Not Be Named (Edzard Ernst, the Dark Lord of the Reality-Based Community) because although he is very obviously highly qualified, we hate his opinions. We are also concerned that the ASA does not appear to have asked us to check and undermine the expert advice, so H:MC21 considers this advice to be seriously adequate, and even wholly accurate on some points, which is plainly unacceptable. In the highly polarised environment of discussions of homeopathy (with reality on one side and our vested interests on the other), we rather hoped the ASA would have been less scrupulous about making sure that any expert was demonstrably impartial. We only like partial experts, who support our claims, and we absolutely cannot be having that neutral Science and Technology Committee Evidence Check, which we refer to as “the report that Shall Not Be Named”)
A third issue is the introduction of at least one completely new claim about how a statement would be interpreted by readers. We fail to see how such an interpretation could be valid, when it has only occurred to the ASA after more than 2 years and in the 7th version (including the version published as the ASA Council’s ruling). This point, especially when taken with the others above, tends to confirm the impression which H:MC21 has derived from the original investigation, namely that the ASA has prejudged the complaints and is seeking to find ways of justifying its judgement, rather than allowing the judgement to be a genuine response to the actual evidence.
We especially deplore the removal of wiggle room afforded by the pretence that because we did not directly say we could treat or cure something, thus the claim was not intended. Of course it was intended, and the weasel wording was intended to make it possible to make these claims by implication and thus evade the rules. We are gutted that the ASA rumbled this.
Implications of the H:MC21 case
H:MC21 is concerned that the ASA does not appear to be simply ruling on whether an individual advertiser has breached codes of conduct in its advertisement, but is ruling on whether a whole sector is permitted to advertise at all. We do not consider this to be within the ASA’s remit.
H:MC21 is distressed that by reviewing claims in general, they have deprived us of the opportunity to overwhelm them with thousands of subtly different bullshit claims and thus get away with it.
Furthermore, the ASA is also attempting to evaluate complex scientific evidence not just about homeopathy but about the whole field of medicine, despite having acknowledged that it lacks the competence to do this. We do not consider that the ASA should make such far-reaching decisions when it lacks the necessary competence.
Furthermore, the ASA has evidently understood the rather simple scientific facts that there is no reason to suppose homeopathy should work, no way it can work, and no proof it does work. We have worked really hard to obscure this and it is offensive that the ASA so quickly saw through it.
Since the ASA is not even a statutory regulator, but a private company operating on behalf of the advertising industry, we are profoundly disturbed that it is assuming powers which are both draconian and based on inadequate understanding of the issues.
We succeeded in persuading the government not to have this fight and we really hoped the ASA would follow their supine position.
In this context other general issues have great significance.
1. The ASA acts as prosecutor.
In responding to a complaint from the public, the ASA Investigation Executive may generate a whole set of additional complaints against a marketer (the person or organisation placing the advertisement). Before reaching the point of adjudication, complaints may be altered to such an extent as to constitute completely new ones requiring additional evidence. Where the public can make a complaint up to 3 months after publication of an advertisement, there appears to be no time limit on the ASA Investigation Executive’s freedom to rewrite complaints.
When people make a complaint, the ASA may get experts in false advertising look at the material in question and see if there are other issues. That’s not playing the game! If we manage to get a claim past Joe Public, who are the ASA to pick it up? The bastards!
2. The ASA acts as advocate for the defence.
The marketer submits evidence in support of the claims made in the advertisement, but this evidence and associated points made by the marketer are summarised by the ASA Investigation Executive. The marketer can seek to correct errors of fact or of argument in this summary, but the Investigation Executive has the final decision on how this information is summarised, and can refuse to alter a summary. As such the ASA Investigation Executive is not just the advocate for the defence, but may actually be a hostile advocate unwilling to put forward the marketer’s true case.
The ASA openly and brazenly acts as a representative of the
victim customer. The bastards!
3. The ASA acts as judge.
The ASA Investigation Executive prepares a draft recommendation of whether each complaint should be upheld or not upheld and the reasons for these recommendations.
The recommended decisions can be based on assertions of how readers are likely to have interpreted statements made by the marketer. The Investigation Executive may take the context into account when making these assertions, or may ignore the context. The assertions can be modified during the process of preparing the draft recommendations, and new ones can appear at any point. No evidence to support these assertions need be presented by the Investigation Executive.
The recommended decisions can be based on evaluation of the evidence provided by the marketer. However, this ‘evaluation’ also involves assertions about the evidence which allegedly rebut that evidence. No evidence to support these assertions need be presented by the Investigation Executive.
The CAP rarely throw out any of the ASA’s carefully assessed recommendations. The bastards!
The language used by the ASA Investigation Executive is ‘slanted’ so as to give greater weight to the views of the Investigation Executive whilst reducing the credibility of the marketer. For example, the Investigation Executive routinely “considers” something to be the case, whether or not there is evidence to support this view. On the other hand, the marketer is routinely said to “believe” something to be the case, no matter how substantial the evidence supplied to support this view.
The ASA assesses the claims impartially, rather than bending over backwards to be fair to the people who are trying to make a living by
scamming the fuck out of people providing a valuable alternative to medicine. The bastards!
As an organisation regulating the advertising industry, the ASA cannot be unaware of the effects of such ‘slanting’. It may be that the ASA Council operates on the basis that there is no difference between the words “consider” and “believe” in this context, though there will always be an unconscious tendency to give different weight to the two terms. Certainly, the general public is highly likely to assume that the words have their conventional meanings when the ruling is published.
The ASA must be aware that by slapping down bogus claims, they hurt the livelihoods of people whose business depends on making bogus claims. The bastards!
In conclusion, the ASA Investigation Executive determines what complaints are addressed; the Investigation Executive determines what defence is presented in response to these complaints; and the Investigation Executive sets out the recommended judgement in a ‘slanted’ way without a requirement for supporting evidence. Whilst the final adjudication is made by the ASA Council, it is simply acting as a jury assessing a case in which all the information is tightly controlled by the Investigation Executive. It is unacceptable that the validity and activity of the whole sector of complementary and alternative medicine should be judged in this forum.
In conclusion, we think that the claims of alternative medicine should be taken at face value even when they conflict with every relevant scientific finding, even when there is absolutely no reason to believe they are true, even when they are quite obviously down to wilful ignorance of reality and a steadfast refusal to acknowledge the burden of proof, even when, as with homeopathy, every single positive study tuns out to be fully consistent with the null hypothesis.
Your freedom to choose bullshit is being impeded by the ASA’s control over our freedom to promote bullshit. You WANT bullshit! You DESERVE bullshit! You have a RIGHT to bullshit! And we have a right to profit form it!