This is a 3-page summary of the case with links to the correspondence.
The summary can be downloaded here.
H:MC21's conclusions about this case are on the third page.
On 24 November 2010 the ASA Ltd wrote to H:MC21 stating that there were 6 complaints about one of its advertisements in the New Statesman. H:MC21 was offered two options:
1. To respond to all 13 issues; or
2. To respond to only 6 issues and agree not to publish the other 7 statements again.
H:MC21 decided to respond to all the issues.
It should be noted that of the ‘optional’ 7 issues:
• One was immediately dropped (original issue 11);
• One was upheld only in a new form introduced 7 months later (issue 8);
• One was upheld on the basis of opinion not fact (issue 9);
• Four were not upheld (issues 6, 10, and original issues 12 and 13)
Had H:MC21 not challenged these issues it would have accepted complaints which could not actually be justified.
H:MC21 submitted a detailed response to the issues on 8 December 2010, together with an outline of the general issues which needed to be taken into account and 101 supporting documents (including a critique of Ernst and Goldacre on Jadad scores). The issues included the structure of the advertisement, evidence based medicine, the science of medicine, the evidence for homeopathy, and the placebo effect.
First Draft Recommendation
The ASA Ltd’s first Draft Recommendation was sent on 18 February 2011 with an accompanying letter. H:MC21 pointed out that the draft was made whilst the ASA Ltd was still not in possession of all the evidence. The ASA Ltd acknowledged this.
H:MC21 responded to the Draft Recommendation on 1 March 2011 with details of the errors it contained, a letter and a further 2 supporting documents.
Second Draft Recommendation
The ASA Ltd’s second Draft Recommendation was sent on 21 March 2011 with an accompanying letter.
H:MC21 responded to the Draft Recommendation on 30 March 2011 with further objections to the grounds on which the ASA was basing its arguments, a request for confirmation of the disinterestedness of the complainants, and another 21 supporting documents.
The ASA Ltd replied on 3 May 2011 and stated that it was clarifying its position and would be seeking further information about the complainants. H:MC21 alerted the ASA Ltd on 12 May 2011 to the fact that it would not be able to look at the ASA Ltd’s response before 23 May 2011.
On 16 May 2011 H:MC21 made a formal complaint about the way the case was being handled.
The ASA Ltd’s third Draft Recommendation was sent on 17 May 2011 with an accompanying letter, stating that it was the final version. In the letter the ASA Ltd made it clear that established scientific facts would not be admitted if they conflicted with an undefined orthodox medical “consensus”. It was also reported that two of the complaints had become members of the Nightingale Collaboration, an organisation specifically established to use the ASA Ltd to target homeopathy and other CAM therapies.
On 23 May 2011 H:MC21 wrote to the ASA Ltd to suggest that the process should be halted until the formal complaint had been processed. This was followed up by a further email to the ASA Ltd on 27 May, as there had been no response. The ASA Ltd agreed to a delay on 30 May 2011.
After studying the third Draft Recommendation H:MC21 sent on 8 June 2011. This letter crossed in the post with one from Guy Parker, Chief Executive of the ASA Ltd, dated 10 June 2011, in which he rejected all H:MC21’s complaints. Four days later, on 14 June 2011, Guy Parker wrote again, reversing this view and acknowledging that mistakes had been made.
Fourth Draft Recommendation – New Challenge
On 22 June 2011 the ASA Ltd sent the fourth Draft Recommendation with an accompanying letter. Significantly, one of the challenges (8) was re-written in this version “to make clear the nature of
the challenge on this point”. In fact it simply brought the challenge into line with the completely new arguments being used by the ASA Ltd. The version of H:MC21’s response appearing in this document was entirely an invention of the ASA Ltd, since this was the first time H:MC21 had seen the new challenge. In the assessment of this challenge, the ASA Ltd “amended our assessment of issue 8 to respond to the points you have made about Sense About Science”, when H:MC21 had not actually been given any opportunity to submit evidence on this challenge. One is bound to question the competence of the ASA Ltd, when it could be unclear about a challenge for over 7 months!
In its response to the third and fourth Draft Recommendation on 11 July 2011, H:MC21 submitted extensive evidence about Sense About Science, together with 25 supporting documents (including a document on ASA 'slanting'). H:MC21 also explained carefully, in detail, and with appropriate quotations, that the ASA Ltd’s general arguments were inconsistent and their basis scientifically unsound. As such, the ASA Ltd was not considering the validity of H:MC21’s evidence impartially on the basis of the CAP Code, but constructing an opposing argument for which the ASA Ltd offered no proper evidence. As a result, the legitimate and adequate evidence provided by H:MC21 was being ruled inadmissible because it did not accord with the scientifically untenable position adopted by the ASA Ltd. Continues ...