Navigating the Complaint Process of Advertising Standards Canada: An Account

 

Visit the Advertising Standards Canada website and take a few minutes to read through the adjudicated consumer complaints for the last quarter of 2011. You’ll come across this curious report:

What could this mysterious, overall-wellness promoting medical device be? I happen to know, because I’m the complainant in this case.  The report that appears on the ASC’s website is the outcome of several months of wrangling with an irresponsible advertiser and a hesitant regulatory body about illegal, ineffective, and potentially dangerous ear candles.

The Advertisement

Near the end of October of last year, I wrote a post outlining the unethical nature of the deal-of-the-day website ethicalDeal.com.  In it, I describe an ad in which ear candling was promoted as a safe and effective way of cleaning out your ears and ethicalDeal’s response when I alerted them to their illegal status. The original ad is still visible here.

Even though I demonstrated to them that ear candles were illegal in Canada for any purpose, they continued to insist that Health Canada allowed ear candling for relaxation or “spiritual” use. This is simply not the case. Ear candles are medical devices that require licenses issued from Health Canada. No licences have ever been issued, so even if Health Canada allowed ear candling for relaxation, no legal ear candles exist in Canada that can be used for it. This makes it extremely difficult, if not impossible, for ear candling to occur in a permissible way.

EthicalDeal’s lame attempt at defending ear candling was maddening because they weren’t claiming that ear candles helped you to relax. Rather, the claim was that ear candling was a “relaxing, safe and more effective ear cleansing procedure than using conventional ear swabs”. It was clear that they were unwilling to budge, but I wasn’t ready to let the matter settle there. Promoters of alternative health products and procedures rarely suffer the consequences of their misinformation. I’m interested in having that situation dramatically change.

The complaint

Since ethicalDeal refused to stop sale of the deeply discounted ear candling procedure I decided to file a complaint with Advertising Standards Canada. The ASC is the national advertising self-regulatory body and oversees the Canadian Code of Advertising Standards. It is probably the most visible and easily accessible organization to complain to, though it has weak enforcement powers.

If Council concludes an advertisement violates the Code, the advertiser, with a copy to the complainant, will be notified of the decision in writing and requested to appropriately amend the advertising in question or withdraw it, in either case without unreasonable delay.

If an advertiser fails to voluntarily comply with the decision of Council, ASC:

  • will advise exhibiting media of the advertiser’s failure to co-operate and request media’s support in no longer exhibiting the advertising in question; and
  • may publicly declare, in such manner as Council deems appropriate, that the advertising in question, and the advertiser who will be identified, have been found to violate the Code.

These powers are worthless for violations by deal-of-the-day advertisers. By the time the Council would sit to adjudicate the complaint the deal would have expired. Requests for withdrawal or amendment would have no practical effect. Still, I was interested to see how the ASC would handle the situation, and even more interested in how ethicalDeal would respond.

The Wrangling

The ASC responded to my complaint, but did not immediately accept it for adjudication.

Your concerns relate both to the practice of ear candling itself, which Health Canada maintains is potentially dangerous and of no health benefit, and to the claims made in advertising by Ethicaldeal.com and/or Greenlife Health Centre for ear candling.

ASC’s mandate under the Code does not extend to preventing the practice of ear candling. However, it can extend to reviewing claims made in advertising regarding this practice. On that basis, ASC can pursue this complaint if you would like us to do so. Please keep in mind that the self-regulatory process under the Code relies on the voluntary cooperation of involved advertisers for its effectiveness.

Please let me know whether you would like ASC to further pursue your complaint. Alternatively, you may submit your complaint to the Competition Bureau for review under the misleading advertising provisions of the federal Competition Act.

I got the sense that the ASC was uncomfortable with my complaint. Of course, I was never confused about whether their mandate would extend to preventing the practice of ear candling. Why would it? All I expected was the ASC to enforce the code they claim to enforce. That was it.

After a complaint is accepted for review, they advise the advertiser and ask for a response in writing. The ad, complaint, and the advertisers response is then considered by the Standards Council. I was notified of the Council’s decision in mid December of last year.

The Decision

Council carefully reviewed the advertisement, the complaint and the advertiser’s response against the provisions of Clause 1 (Accuracy and Clarity) of the Code.

In its response to Council, the advertiser contended that ear candling by a holistic health practitioner as a relaxation service is not illegal. However, the advertisement in question made specific therapeutic claims that “ear candling…promotes overall wellness” and that it is “a safe and more effective ear cleansing procedure than using conventional ear swabs.”

Health Canada’s stated position is that “there is no scientific proof to support claims that ear candling supports medical benefits” and that “there is plenty of proof that ear candling is dangerous”. On the basis of Health Canada’s declaration, Council found that this advertisement was misleading and that the claims could not be supported, contrary to Clauses 1(a) and (e) of the Code.

The advertised confirmed to Council that the claims in question would not be repeated in any future advertising.

Perhaps unsurprisingly, ethicaDeal.com told the ASC much the same thing as they told me. Gladly, the Council didn’t buy it. However, I was dissatisfied with the consequence. Accepting a simple promise to not repeat the claims in the future was laughable. Who’s supposed to ensure they follow through? A more appropriate consequence would be to have ethicalDeal send out a notification to all subscribers, or at the very least post a notification somewhere on their site.

In an effort to be transparent, the ASC publishes accounts of complaint adjudications online in two categories: identified advertisers and non-identified advertisers. In order for an advertiser to named on the ASC’s complaint reports page, the advertiser must fail to take appropriate action (i.e correcting the alleged violation of the Code) after they’ve been notified of an accepted complaint but before the Standards Council sits to make a decision.

While it’s not stated outright in the letter they sent me, the narrative seemed to suggest that the promise to not repeat the ear candling claims came after the adjudication. That is, it reads as if the promise was the consequence imposed. So in my response, I sought confirmation that the report would appear in the identified section and expressed concern that the consequence was terribly inadequate.

More Wrangling

It’s at this point that things went a little sideways. Below is the response the ASC sent me:

The Ad Complaints Reports are intended as a learning tool for advertisers and the public. They are not intended as a means of punishing advertisers through adverse publicity. This case will be reported in the Non-identified Cases of ASC’s website because Ethicaldeal.com advised ASC before Council met to adjudicate the complaint that this advertisement would not run again.

Under the Canadian Code of Advertising Standards (Code) there is one sole remedy available; that is to have advertisements found to contravene the Code withdrawn or amended. Moreover, in this case the advertiser volunteered to contact each person who purchased the deal from the advertiser to inform them of Health Canada’s position on ear candling and provide each customer with the applicable links or a copy of Health Canada’s advisory for details. ASC has accepted the advertiser’s offer and has asked for verification that the advertiser has acted accordingly.

Other mechanisms for handling consumer complaints about allegedly misleading advertising, such as under the Competition Act, Food & Drugs Act or provincial consumer protection legislation, may well offer different remedies.

I trust this clarifies the process for you.

A learning tool? EthicalDeal.com is in the business of advertising, and I expect them to be fully aware of all the relevant legislation and regulation that applies to them prior to putting out a single ad. You know, like the rules about how claims in advertising should be truthful and not misleading. They don’t need a learning tool, they need discipline. It’s worth remembering that I approached the advertiser first and tried several times to have them understand that their ad was problematic. I should also mention that the day I received this letter advising me that the complaint reports are intended to be a “learning tool”, ethicalDeal was advertising a deal for magnetic pain patches. Health Canada has a policy statement on these too.

Note how this letter changes the narrative of the adjudication significantly. Before, ethicalDeal claimed to council that ear candling wasn’t illegal, the Council disagreed, and then ethicalDeal promised to not run the ad again. Now, ethicalDeal claimed that ear candling wasn’t illegal but promised to not run the ad again anyway; the Council disagreed and then accepted their offer to make each purchaser aware of Health Canada’s position of the matter. This letter didn’t really clarify anything. Instead, it left me wondering about the ASC’s commitment to transparency and the code they say they enforce.

Conclusion

I believe that the ASC wanted nothing to do with my complaint from the start and took every opportunity to dissuade me from pursuing it with them and then attempted to placate me with as few details as possible. They could have forwarded the complaint to other agencies themselves if they felt they had no jurisdiction (in fact, they’ve done this for me before). They also could have given me a full account of what really happened during the adjudication the first time. I don’t know if ethicalDeal really promised to not run the ad gain prior to the adjudication, and I’ll never know if they really contacted each purchaser of the deal to inform them that they bought a service that Health Canada states is dangerous and illegal. If you were to come across the complaint report as it reads on the ASC’s site, you would not know what dangerous medical device was advertised and you would never know that the mysterious medical device is actually illegal.

You might think that I would advise people to avoid complaining to the ASC, but I’m actually going to do the opposite. Please, complain about any ad you see fit; particularly those featuring pseudoscientific claims. I’m willing to bet you’ve even seen one today. Take 5 minutes and challenge the advertiser to back the claims up and hold the ASC to task. Consider that you might be the only person to do so and that the ASC would much rather deal with complaints about the advertised cost of cheese and underpants. If the ASC considers the consumer complaint process to be a learning tool, perhaps they should learn a little about what consumers expect to see from them when a complaint is filed. The story here isn’t necessarily about ear candles; it’s about how much work it took to get an advertiser to face the consequences of spreading harmful misinformation. Too much work for too little, don’t you agree?

7 Responses to “Navigating the Complaint Process of Advertising Standards Canada: An Account”

  1. Bryan says:

    So, is there a complaint moving forward on the magnets?

    Also, do you have any info/link to the law(s) regarding the advertising of “health products” that are not OTC (i.e. health Canada) approved? I know in the US their are some pretty specific limitations and a quack miranda warning, but I don’t know (and couldn’t find) the Canadian equivalent.

    • Dianne Sousa says:

      Hi Bryan,

      I did not file a complaint about the magnetic pain patches with the ASC though I notified them of the problematic ad.

      If you click on the link to ad you’ll see that I used the comment section to point out how the ad was misleading. They tried to dodge it for a bit, but in the end they changed the language in the ad to what they thought would be in compliance with the law. For example before the ad read: “Use your Acu-Med Advanced Pain Patches for muscle, back or joint pain, tennis elbow, runner’s knee, muscle cramps and more”. After the changes it read: “Use your Acu-med Advanced Pain Patches on your muscles, back and joints when a feeling of peace, health, wellbeing and vitality is desired.” Perfect? No. Hilarious? Yes.

      Regulation of health product advertising is rather fragmented. There are different agencies that have legislation and regulation in place that might apply, provincial, federal and non-governmental.

      To further complicate the matter, the legislation or regulation that might be applicable will depend on the nature of the health product in question. Magnetic pain patches and ear candles are considered medical devices and regulated by the Medical Device Bureau in the Therapeautic Product Directorate st Health Canada. The pain patches are a class I device and are subject to the Food and Drugs Act and/or Section 12 of the Medical Device Regulations:

      http://laws-lois.justice.gc.ca/eng/regulations/SOR-98-282/page-3.html#docCont

      Ear candles are classified as a class III and their regulation is under Section 27:

      http://laws-lois.justice.gc.ca/eng/regulations/SOR-98-282/page-5.html#docCont

      Still with me? Good. Natural Health Products on the other hand, are regulated by the Natural Health Products Directorate at Health Canada. All natural health products must have either a license issued or a temporary exemption number from the NHPD in order to be legally sold in Canada. The advertising of these products is regulated as well by the Directorate. You can access their compliance and enforcement document here:

      http://www.hc-sc.gc.ca/dhp-mps/compli-conform/info-prod/prodnatur/complian-conform-pol-eng.php

      The section relevant to advertising is number 6.2.2.

      Finally, there are also general provisions against false and misleading advertising under the Competition Act, enforced by the Competition Bureau:

      http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/00513.html

      Unfortunately, once a consumer complaint is filed with the Competition Bureau the agency takes over and conducts their compliance and eforcement largely in private. They have both criminal and civil tracks, but focus on less intrusive measures first before pursuing other action.

      There is so much going on that it’s near impossible to figure out who to file a complaint to. Worse, this allows violations to go practically unchecked.

  2. JB says:

    Here in Vancouver I have seen ads advertising “homeopathic immunization.” This is beyond outrageous, not merely fraud but a positive public health threat. I went to the Board of Trade for my complaint, and they went on to conduct some utterly mysterious, private, black-box “investigation.” I recently saw the quacks selling it again at a period craft fair. I hope others will complain about it too. Next time I see an ad I’ll pursue complaints with other appropriate agencies you’ve pointed out. Thanks for the informative blog post, however frustrating it might be to read.

  3. DMG says:

    In this situation I don’t think Advertising Standards Canada behaved unreasonably. They were very upfront about the fact that they rely on voluntary compliance, and don’t have the legal teeth to intervene outside of that, and that their mandate is not to shame organizations into compliance.

    That’s not to say there shouldn’t be an organization with more teeth. I’d love to see more aggressive policing of sketchy claims in advertising (though maybe I wouldn’t be too fond of the extra tax bill to fund it…).

    I don’t think we can fault ASC for not being that organization, when they never claimed to be.

    • Dianne Sousa says:

      DMG,

      I was aware of the lack of a proper enforcement structure, and it followed that they would have to rely on voluntary compliance from the advertiser with the process. Telling me about this before they proceeded to investigate my complaint served as a way to have me consider not filing with them or possibly to head off disapointment in the result. Weak enforcement powers that rely on voluntary compliance is only a notch above no regulation at all.

      They do, in fact, name and shame when the advertiser fails to comply with the process. They do this by nameing the advertiser in the public complaint reports posted online. Their insistence that the reports are intended only as a learning tool is disingenous given how they decide who gets named.

      The ASC regulates advertising alongside other organizations with the legal power to force compliance (such as the Competition Bureau), yet is positioned as the right place to file complaints. For example, the CRTC advises the public to complain to the ASC and doesn’t mention that the Competition Bureau at all:

      http://www.crtc.gc.ca/eng/info_sht/g8.htm

      If the ASC isn’t working, then it should change to work better for the public they claim to serve.

  4. You need to cool it says:

    Ear Candling works. Speaking from someone who does it on their own ears. It has been confirmed by doctors world wide, just not by a monopolistic pharma-industry-regulator consortium.

    I know it works because I was 3 days away from a tube insertion procedure to clear out fluid and did it. When I went in for the procedure they did a final check and said all clear, no need for the procedure.

    • Art Tricque says:

      Oh no! It’s a personal anecdote. And an exaggerated claim of world-wide efficacy! And a pharma shill gambit! Well, that just tears down the arguments presented by the author … no it doesn’t.

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  • Dianne Sousa

    Dianne holds a degree from the University of Guelph in criminal justice, public policy and social psychology. She became involved in the skeptical movement after becoming disillusioned with the addictions counselling field. Skeptical topics of interest include alternative medicine and it's regulation in Canada, pseudoscience and the law and skeptical activism. She also crochets extensively and enjoys bad film, usually at the same time. Follow me on twitter: @DianneSousa. All views expressed by Dianne are her personal views alone, and do not represent the opinions of any current, former or future employers, or any organizations or associations that she may be affiliated with.