Armchair activism and amber

Mark Hanna reports on how to use the Advertising Standards Authority to fight back against the promotion of questionable therapies.

In November 2012, I saw a television infomercial for a product by a 'Dr Ho' that struck me as a little odd. I later went to the Dr Ho website to discover that the man behind the brand is not a medical doctor at all, but instead a chiropractor and acupuncturist. I contacted the Advertising Standards Authority (ASA(, asking if he was allowed to use the term 'doctor' in a way that falsely implies he is a medical doctor, as was done in the ad, and the ASA interpreted my question as a complaint.

Eventually I was told that the ad would be changed to make it clear that 'Dr Ho' is not a medical doctor, and so my complaint was considered to be settled. After seeing how easy it could be to make a difference, this was the start of an enduring habit of laying complaints against what seemed to be misleading medical advertisements.

In February 2013, a few months after I'd started actively complaining, I decided to focus my skeptical activism on a single product, and rather arbitrarily picked amber teething necklaces as my target. I had thought that, as misleading therapeutic claims in general are very easy to find and seem to be never-ending, perhaps if I focused on a single specific subset of them I might be able to make a significant dent. To date, I've made 21 complaints about amber teething necklaces. Of those 21, the ASA's decisions for 19 have been released, and each one of those was successful.

When I say successful, what I mean is that each of the complaints were either settled or upheld. A complaint is settled when the advertiser voluntarily changes their ad to the extent that the ASA agrees it no longer violates their codes. A complaint is upheld when the complaints board agrees that the ad violates their codes, but the advertiser doesn't change it voluntarily.

Of the 19 successful complaints, 14 of them have been settled and 5 were upheld. Only one of these advertisers even tried to defend their claims by providing evidence, but what they provided turned out to be irrelevant to their claims, so the complaint against them was upheld.

Unfortunately, due to the fact that the ASA is not a statutory regulator, advertisers aren't legally required to comply with the ASA's requests to remove their advertisements when a complaint is upheld against them. At the time of writing, none of the five advertisers of amber teething necklaces against whom complaints have been upheld have removed the misleading claims from their advertisements.

I have made sure the ASA is aware of this, so that they can work with the relevant statutory regulators to protect consumers from misleading information. By the time this article has been published the Fair Trading Amendment Act 2013, which prohibits unsubstantiated claims in trade, will have come into effect. This will make it much easier for these companies to be potentially prosecuted for their misleading advertisements.

Although the ASA has not yet managed to get all of these advertisers to remove their misleading claims, the number of complaints I have submitted about the same type of product seems to have made them realise that this is a widespread problem. Last year the ASA, Medsafe, and TAPS (the Therapeutic Advertising Pre-vetting System) adjudicators worked together to create a guideline specifically for advertisements of amber teething necklaces.

This new guideline is TAPS Guideline 41, entitled the Guide for Advertisers when promoting products such as amber teething necklaces. The guideline discusses the types of claims that are considered acceptable and unacceptable for advertisements about amber teething necklaces, and I am very happy to see that the list of unacceptable claims ( which is not exhaustive) seems to contain all the types of misleading and unsubstantiated claims I have encountered. Some examples of unaccepted claims are:

• When amber is warmed on the skin, the skin's warmth causes the amber to release trace amounts of healing oils
• When warmed against the skin, [amber] releases its therapeutic properties safely and naturally
• How does Baltic Amber work? No one knows exactly how or why Baltic amber works
• Because Baltic amber teething necklaces have not been scientifically proven we cannot make any claims as to their effectiveness
• Baltic amber teething necklaces have been a traditional remedy for teething babies in the Balticregions [sic] for centuries
• Have immune-boosting properties
• Have therapeutic qualities

Many of the unacceptable claims seem to have been taken word for word (right down to spelling and grammatical errors) from advertisements I have complained about. For example, this claim was found in an advertisement by Baby Amber Teething, against which complaint 13/077 was upheld:

"There is no mystic in Baltic amber, just huge amount of succinic acid which has anaesthetic and anti-allergic characteristics"

The guideline also makes the excellent point that, if claims regarding the action of these necklaces are correct, then it should be regulated as either a medicine or a medical device:

Medicines

Claims that the beads have a therapeutic effect by releasing chemicals which are absorbed through the skin, would classify the beads as a medicine.

Medical Devices

Claims that the beads have a therapeutic effect through the wearing only would classify the beads as Medical Devices.

This is something that has occurred to me as well. Advertisers often claim that amber teething necklaces warm against the skin and release succinic acid, which is then absorbed through the skin into the bloodstream from where it can have therapeutic benefits. However, if these claims were true then amber teething necklaces would be unapproved drug delivery devices that administer an unknown dose of an unapproved drug. They have been tested neither for safety nor for efficacy.

The guideline also remarks on the evidence that would need to be presented before any therapeutic claims about the products could be deemed acceptable.

In either case, the therapeutic claims and the method of their effect would need to be substantiated in Clinical Trials that demonstrated efficacy. Such trials would be double blinded against a placebo and show a statistically significant and measurable effect. With these traditional Folk products, this is fairly often not realistic, and the effect may in itself be a placebo effect, or be due to historical anecdotal reports.

I'm also happy to note that the guideline has a section on safety warnings, that recommends warnings similar to those recommended by the Ministry of Consumer Affairs:

Amber necklaces should be removed from a baby when the baby is unattended even if this is likely to be for a very short period of time. Babies should not be left wearing necklaces while sleeping whether that is during the day or overnight.

This guideline make it very easy for advertisers, the ASA, and myself to tell if any claims made in advertisements are out of line. Since it was published, the ASA has used it effectively as a guide for when an advertiser's changes are sufficient for a complaint to be settled. In response to the initial changes made by Bambeado in response to my complaint 13/555, the complaints board wrote back to tell them that their changes weren't good enough.

The guideline has also allowed me to make less formal complaints regarding non-compliant advertisements. Instead of always having to go through the process of a formal complaint, in some cases the ASA has elected to immediately send a notice to the advertiser informing them of the guideline and their responsibility to conform to it. For example, after my Bambeado complaint I found 14 of their stockists were still advertising the products in a misleading manner on their websites. Instead of having to complain about them all individually, when I contacted the ASA about this they elected instead to send each stockist a letter about the guideline and their responsibility to comply with it.

I'm especially happy that the standard set by this guideline seems to be significantly stronger than the standard that the ASA has previously used in settling some of my complaints. For example, complaints 13/177 (Punga Tails) and 13/553 (Mama Pukeko) were both settled, yet those websites still contain claims about amber jewellery that seem to clearly violate this new guideline. The Punga Tails website still contains claims such as this:

"Baltic amber has been used as a traditional remedy for teething babies for centuries. Wearing Baltic amber can have a very soothing effect and is beneficial for many adult discomforts."

The Mama Pukeko site still contains this claim on its homepage:

"For centuries the people of Lithuania and other Baltic countries have worn Amber to help cure all types of pains and ailments. In these countries it is believed to help anything from sore throats to aching muscles and joints. If you believe natural alternatives are helpful then you may find wearing amber jewellery means you can avoid frequent use of other medications."

I intend to continue to bring these misleading claims to the ASA's attention, and would encourage anyone else to do the same. Hopefully in the near future misleading claims about amber teething necklaces in New Zealand advertisement might be eradicated.

To me, it feels like this guideline is a sign that my efforts have finally come to fruition. It feels important to note that, in all of the work I've done to remove misleading claims about amber teething necklaces, I've never had to spend a cent, and I've never had to leave my chair. I have not required any special knowledge or resources in order to do this work, only an internet connection. I think the most encouraging part of this story is that one person can make a difference.

And that person could be you.