CAP is the Committee of Advertising Practice which publishes the codes of advertisers in the United Kingdom and is administered by the Advertising Standards Authority (ASA). Copy Advice is a service provided by CAP to advertisers, marketers and copyrighters to help them meet the UK Advertising Codes.
In March 2011 the ASA extended its remit to cover business websites and online marketing - if you are therapist with a website this will apply to you. Read more here: http://copyadvice.co.uk/News/2010/Digital-remit-extension.aspx
While the ASA is voluntary self-regulation by advertisers it has a range of responses for those found in breech of the guidelines - from 'name and shame' through to referral to the Office for Fair Trading for prosecution under the Trade Description Act or Consumer Protection Act (what they call their "legal backstop")
CAP have published guidance for health related marketing - both for therapies in general and for specifically for hypnotherapy. In addition CAP published guidance on referring to medical conditions - with specific inclusions for hypnotherapy - and additional guidance on marketing stop smoking services. These are available on the CAP website but require registration to access them.
Therefore we have put together some of the essential information for you below. However we'd encourage you to register with CAP here (http://advertisingcode.co.uk/Account/Register.aspx) so that you have full access to their guidance (which is regularly updated).
Essential Information for Hypnotherapists from CAP
Advice on marketing copy for
Therapies in General:
"Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Many marketers of health-related products or therapies would like to list ailments that they believe their products or therapies can treat. The Code, however, contains specific rules that restrict the types of claims marketers other than qualified health professionals may make. Rule 12.5 states “Marketers inviting consumers to diagnose their own minor ailments should not make claims that might lead to a mistaken diagnosis”. Rule 12.2 states "Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered."
As well as ruling against those practitioners claiming to treat conditions that they could not (Pharma Nord (UK) Ltd, 16 January 2008; The Body Detox Clinic, 8 August 2007; Health & Living Foundation, 29 August 2007 (complaint 1); Everwell Chinese Medicine Centre, 25 July 2007 (complaint 1); Healthy Marketing Ltd, 18 July 2007 (complaint 1); East London Homeopathic Centre, 12 July 2006 (complaint 2), and Ever Well Ltd, 4 January 2006 (complaint 1), the ASA has also ruled against practitioners of complementary medicines and therapies who have discouraged readers from seeking conventional medical attention for serious conditions (Health & Living Foundation, 29 August 2007 (complaint 3); Everwell Chinese Medicine Centre, 25 July 2007 (complaint 4); Healthy Marketing Ltd, 18 July 2007 (complaint 2); East London Homeopathic Centre, 12 July 2006 (complaint 2); Ever Well Ltd, 4 January 2006 (complaint 3); Herbmedic, 22 October 2003, and Dr & Herbs, 30 April 2003).
In 1998, CAP produced a Help Note on Health, Beauty and Slimming Marketing Communications that Refer to Medical Conditions to help the industry produce or publish marketing communications that comply with the Code. The Help Note classifies ailments as either those that can be acceptably referred to in marketing communications targeted at the general public or those that cannot be referred to because they are considered too serious to be diagnosed or treated without the relevant medical supervision. The guidelines in the Help Note do not apply to marcoms for medicines that hold an MHRA product licence or marketing authorisation to treat a serious or prolonged ailment.
The Help Note acknowledges that most health practitioners specialise in treating different types of ailments and acknowledges, for example, that a physiotherapist might be well suited to treating a sports injury whereas massage might help someone suffering from anxiety. Marketers of most disciplines of complementary medicine can find guidance under the entry specific to their discipline, for example acupuncture.
Examples of ailments that may be referred to in marketing communications (subject to the marketer being able to prove the efficacy of the product or therapy) include: arthritic pain, IBS, neck ache, feeling down and temporary erectile dysfunction. Examples of ailments that cannot usually be referred to in marketing communications include: arthritis, migraine, diabetes, prostate problems, heart disease, hiatus hernia, whiplash and impotence. (see more complete guidance here)
The lists are not exhaustive and are updated from time to time in line with ASA adjudications and prevailing medical opinion, including Government reports.
In July 2007 the General Media Panel, in considering rule 12.3, concluded that all complementary and alternative therapy practitioners offering significant or invasive treatments should encourage consumers to take independent medical advice in the initial advertisement and before committing themselves to the treatment.
Marketers of complementary medicines should comply with the more general clauses of the Code; for example, they should not cause undue fear and distress or mislead and should be responsible (The British Prostate Association, 15 October 2003, and Holford & Associates, 26 March 2003). Several complementary practitioners have fallen foul of the ASA by, for example, prefixing their name with the title “Dr” or otherwise implying that they were ”qualified” in conventional medicine (Everwell Chinese Medicine Centre, 25 July 2007 (complaint 2); Ever Well Ltd, 4 January 2006 (complaint 4); Great Chinese Herbal Medicine Ltd, 7 December 2005 (complaint 3), and Multicure Health Centre, 6 August 2003). One practitioner continued to describe himself as a ”doctor” despite not being registered with the General Medical Council and having been struck off the General Chiropractic Council’s register (Spinal Health Centre, 9 January 2008).
Marketers should ensure they do not make unauthorised medicinal claims (Health & Living Foundation, 29 August 2007 (complaint 4)).
Rule 12.6, introduced to reflect Annex practice 17 of the Consumer Protection Regulations, states that marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.
See ‘Medicines: Prescription-only and Disease Awareness Advertising’ and specific therapies."
Advice on marketing copy for hypnotherapy specifically:
"This section should be read in conjunction with the entry on ‘Therapies, General’.
Many trade bodies regulate and represent hypnotherapists and levels of training seem to vary widely. Hypnotherapy involves the patient relaxing into an ‘altered state of consciousness’ to utilise enhanced suggestibility to treat psychological and medical conditions and effect behavioural changes. Hypnotherapists claim to cure and treat several conditions and CAP has accepted that they can help: relieve anxiety, aid sleeping, bedwetting, confidence, eating problems (but not disorders), minor skin conditions (e.g. those exacerbated by stress) etc. CAP has not accepted that hypnotherapists can treat serious medical conditions (Rule 12.2 and British Society of Clinical Hypnosis, 31 October 2001) and marketers should not encourage consumers to self-diagnose and self-treat those conditions (Rule 12.5).
Rule 12.8 requires marketers to hold proof before claiming or implying that minor addictions and bad habits can be treated without effort from those suffering. For many, this will mean that success is largely down to readers’ commitment and determination and should not be attributed solely to the hypnotherapy. Some hypnotherapists argue that their treatment ‘by-passes’ the need for participants’ willpower because it affects the sub-conscious part of the brain. Those hypnotherapists would have to hold evidence before implying the participant had no role to play in breaking that bad habit or minor addiction.
Many hypnotherapists claiming to offer smoking cessation have fallen foul of the ASA by making success claims they cannot support (Bromley Stop Smoking Clinic, 19 November 2003 and Practice Builders Ltd, 19 February 2003). One marketer (Equahealth UK Clinic, 23 October 2002) submitted a meta-analysis of the efficacy of different methods of giving up smoking: it stated that the average success rate of hypnotherapy was 36%. Marketers making success claims should ensure that they are based on rigorous evidence and not merely calculated on those patients who do not return for follow-up sessions or take up a money-back guarantee. Some marketers have followed up smoking cessation sessions with a telephone survey to establish success rates. The ASA has investigated that practice and concluded that, although it might indicate success, telephoning customers was not robust enough to prove definitive success rates (Dune Hypnotherapy Group, 5 November 2003). Blood tests are likely to be the only way of ascertaining whether people have given up smoking.
Marketers should also ensure that success claims for a technique are not confused with success claims for an individual (Alexandra Swindells, 3 November 2004). Although the ASA and CAP have accepted that hypnotherapy can help smokers give up, the scientific community seems divided on whether the technique is effective.
See the entry on ‘Stopping Smoking’ for specific examples of what can and cannot be said by marketers claiming to be able to stop patients smoking. The general principles apply for all other hypnotherapists claiming to treat minor addictions and bad habits."
The CAP Code (summary of relevant clauses for CAM therapies)
All relevant Code clauses apply but those listed below have particular relevance to health, beauty and slimming marketing communications that refer to medical conditions:
“Medical and scientific claims made about beauty and health-related products should be backed by evidence, where appropriate consisting of trials conducted on people.... Substantiation will be assessed by the ASA on the basis of the available scientific knowledge” (clause 50.1);
Marketers should hold robust evidence for all claims, particularly those that imply or state efficacy and “new” or “breakthrough” claims.
"Marketers should not discourage essential treatment. They should not offer 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" (clause 50.3);
Marketers should delete all references, including implied references, to medical conditions for which suitably qualified medical advice should be sought, unless advice, diagnosis or treatment is carried out under the supervision of a doctor or other suitably qualified health professional.
Marketers should not encourage readers to mistakenly self-diagnose or shun qualified medical advice or treatment in favour of the marketed products or therapies. The ASA is unlikely to accept references to such conditions in a marketing communication addressed to the public, even if the marketed product or therapy is proven to treat that condition. That does not apply to marketing for medicines that hold a product licence or a marketing authorisation to treat conditions for which advice from a suitably qualified person should be sought.
References to Medical Conditions in Marketing Communications
CAP - Help Note on Health, Beauty and Slimming Marketing Communications that Refer to Medical Conditions (full document)
To help the industry the Copy Advice team has compiled two lists. The first identifies medical conditions for which medical advice from a suitably qualified person should be sought, the second identifies conditions which could legitimately be referred to in marketing communications without breaching clause 50.3, subject to them complying with all other appropriate Code clauses.
When referring to either list, please consider these points:
1. Clause 50.3, and therefore the rest of these guidelines, does not apply to marketing communications: for products that hold a product licence or a marketing authorisation to treat a serious or prolonged medical condition; for hospitals, clinics and the like that employ qualified practitioners; that are addressed only to members of the medical or allied professions;
2. Clauses 50.3 and 50.1, and therefore the rest of these guidelines, do apply to marketing communications for products classified as a medical device under the Medical Devices Regulations;
3. Clause 50.3 is not intended to prohibit claims that products or therapies can help reduce the risk of contracting a serious or prolonged medical condition (although it is important to ensure that such claims are legal);
4. Most health practitioners specialise in treating different types of ailments and medical conditions. For example, a physiotherapist may treat aches and pains and a psychotherapist may help someone suffering from a phobia. Practitioners of the disciplines represented by these capital letters can probably treat those listed ailments or medical conditions that display the same capital letter:
P Psychology (for example, psychotherapy, behavioural therapy, counselling)
M Manipulation (for example, osteopathy, physiotherapy, chiropractic)
That information is not exhaustive and may, on receipt of satisfactory evidence, be updated from time to time. More information on other therapies is available at www.cap.org.uk/adviceonline;
5. unless otherwise indicated, prefixing an acceptable reference to a medical condition with "serious", "chronic", “persistent" or similar is likely to render it unacceptable;
6. the lists are not exhaustive and are subject to amendment and updating in line with ASA adjudications and prevailing medical opinion, including Government reports.
Conditions for which suitably qualified medical advice should be sought
(note: conditions relevant to hypnotherapy & psychotherapy have been marked bold)
Age related Macular Degeneration,
Arthritis [c.f. Arthritic Pain (M)]
Attention Deficit Hyperactivity Disorder,
Blood Pressure, High
Circulation, Poor [c.f. Circulatory Problems]
Chronic Obstructive Airway Disease, COAD
Depression [c.f. Feeling Down or Feeling Blue] (P)
Drug Addiction (Substance Abuse)
Ear Disorders, Serious
Erection Problems or Erectile Dysfunction [c.f. Temporary Erection Problems, Temporary Erectile
Eye Disorders, Serious
Gall Bladder Disorder
Impotence [c.f. Temporary Erection Problems, Temporary Erectile Dysfunction]
Infertility [c.f. Sexual Counselling]
Jaw Joint Dysfunction
Multiple Sclerosis, MS
Memory problems or Memory Lapses
Menstruation, Regulation of
Migraine [c.f. Migraine Headaches]
Obesity [c.f. Diet, Trouble Sticking to]
Obsessive Compulsive Disorder, OCD (P)
Psoriasis [c.f. Skin Problems]
Polycystic Ovary Syndrome
Sexually Transmitted Diseases
Skin Disorders, Serious
Herpes Zoster (Shingles)
Human Immunodeficiency Virus, HIV
Suicidal thoughts (P)
Thrush, Oral [c.f. Thrush, Vaginal]
Conditions for which evidence could be sought by the ASA or CAP
Aches and Pains (M)
Alopecia (Hair Loss)
Arthritic Pain (M)
Backache (M, Ac)
Back Pain (M, Ac)
Bacterial Vaginosis, BV
Circulatory Problems, Local or Minor (M) [c.f. Poor Circulation]
Cold Cholesterol, High
Chronic Fatigue Syndrome (Formerly ME) (P)
Colic Concentration (P)
Dental Pain (Ac)
Diet, Trouble Sticking to (P) [c.f. Obesity]
Digestion Problems (M)
Eczema, Stress-related (P)
Emotional Problems (P)
Frozen Shoulder (M)
Headaches (P, Ac)
Irritable Bowel Syndrome, IBS (H)
Joint Pains (M)
Libido, Low (P)
Migraine Headache [c.f. Migraine]
Muscle Spasms (M)
Muscle Tension (M, P)
Nails, Fungal infections
Enuresis (Bedwetting) (P)
Erection Problems, Dysfunction, Temp-
Neck Ache (Ac)
Pre-menstrual Tension or Pre-menstrual Syndrome (P)
Panic Attack (P)
Pins and Needles Relationship Problems (P)
orary [c.f. Impotence, Erection Problems, Erectile Dysfunction]
Feeling Down or Feeling Blue (P) [c.f. Depression]
Fibromyalgia (Fibrositis) (M)
Relax, Inability to (P, M)
Rheumatic Pain (M, Ac)
Sexual Counselling (P)
Sinuses, Congested Sinusitis
Skin Problems [c.f. Psoriasis]
Skin Problems, Stress-related (P)
Sleep, Trouble Getting to (P)
Sleeplessness, Intermittent (P)
Smoking Cessation (P, H)
Sports Injuries, Minor (M)
Stomach, Upset Stress (P, H)
Tension (P, M)
Thrush, Vaginal [c.f. Thrush, Oral]
Advice on specific marketing communications is available from the Copy Advice team by telephone on 020 7492 2100, by fax on 020 7404 3404 or by e-mail on email@example.com. The CAP website at www.cap.org.uk contains a list of Help Notes as well as access to the AdviceOnline database, which has links through to relevant Code clauses and ASA adjudications.
CAP Guidance: Stopping Smoking
The Code requires marketers (e.g. hypnotherapists, counsellors, authors of self-help books) offering treatment for smokers to help them stop smoking to hold proof if they claim or imply that smokers will have to make no effort to overcome their addiction. The ASA has not yet seen proof that smokers can stop smoking unless they are determined to do so.
Unqualified claims such as ‘Stop Smoking the easy way’ or ‘Stop Smoking in 1 hour’ often place no emphasis on the participation or action of the smoker and could imply that the method offered, not the smoker’s desire to stop, is the key to success. Those types of claims are unacceptable without substantiation (Rules 3.7 and 12.1) and are likely to be seen as unacceptable guarantees of success (EasyStop, 17 October 2001). Conversely, claims such as ‘If you really want to stop smoking, then one session could be all you need’ or ‘Hypnotherapy could help you to give up, if you are determined to stop smoking’ are fine as long as they are not used to imply that the smoker will be able to break the habit without self-control on their part. Attending a course, being hypnotised or buying a book cannot by itself be sufficient to enable a smoker to quit their habit.
Similarly, words such as ‘easy’, ‘permanently’ or ‘cure’ could imply guaranteed success and should not normally be used whereas ‘simple’ or ‘effective’ might be acceptable in the right context, for example ''For the truly committed, hypnosis could be an effective way to help you give up smoking'' (EasyStop, 17 October 2001). The claim ‘Stop Smoking’ with a footnote stating ‘Willpower is required’ or ‘Full client commitment is essential’ might also be acceptable.
Marketers should avoid making specific claims such as ‘x% success rate’ without rigorous substantiation (Amanda Pumo, 13 March 2002). Telephone surveys are not, for example, acceptable (Dune Hypnotherapy Group, 5 November 2003). Practitioners, such as hypnotherapists or those using neuro-linguistic programming, should be careful to distinguish between success rates achieved by the method generally and those that they have achieved personally. The ASA has ruled that success rates should not be calculated by customers taking advantage of a money-back guarantee or free follow-up sessions if the method is not successful first time (Dune Hypnotherapy Group, 5 November 2003). Hypnotherapists should refer to the specific sections on 'Hypnotherapy'.
As far as the Medicines and Healthcare products Regulatory Agency (MHRA) is concerned, a smoker who is unable to quit without artificial aids is addicted and therefore a product presented to help stop smoking is presented to treat the addiction or its symptoms. As such, all anti-smoking products (e.g. Nicorette) are regarded as medicinal and marketers should hold a relevant marketing authorisation (Rule 12.11). Marketers should seek advice from the MHRA if they are unsure about whether their products or claims are medicinial.
See also entries on ‘Hypnotherapy’ and ‘Medicines’