ASA Complaint: U-GO’s Amber Teething Necklaces

In my previous post on amber teething necklaces, I described the problems with the therapeutic claims commonly associated with them. One of the websites I quoted is a New Zealand website, “U-GO” Products, that sells amber teething necklaces (among other things) online.

Late in 2012, I made a complaint about the content of their site. Took a screenshot of the site as it was at that point, with the offending phrases highlighted. Here’s what the advertisement said:

Wearing Baltic amber close to the skin is a traditional European remedy for baby teething.

Considered a natural analgesic, Amber is reported to help calm a baby without resorting to drugs. Used for centuries in Europe, amber’s natural anti-inflammatory and pain relieving properties are perfect to soothe teething babies.

Amber is a fossilized resin containing high levels of succinic acid, attributed for its pain relief and anti-anxiety properties.

When worn the bead warm against the skin, releasing its therapeutic properties safely and naturally.

After reading this, I wrote up a complaint to the ASA, which is included at the end of this post. The complaint followed this format:

  • Explained how this product is a therapeutic product as defined in the ASA’s Therapeutic Products Advertising Code.
  • Identified the therapeutic claims made in the advertisement.
  • Stated that these claims lack substantiation, which is required by the code.
  • Explained why these claims are unlikely to be true.
  • This product has associated risks (I was able to cite the Ministry of Consumer Affairs here) but lacks warning labels and therefore also does not demonstrate the high degree of social responsibility required of such advertisements.

It took quite some time for me to hear back from the ASA. My complaint was accepted on the 11th of December 2012 to be put before the Advertising Standards Complaints Board (ASCB), but I did not received the full details of the decision until the 12th of February.

The advertiser’s initial response to my complaint was not to change the content of the advertisement. Instead, they changed the page to show the product as being “SOLD OUT” and said my concerns are dealt with on the supplier’s website. Their entire response has been included at the bottom of this post.

Amazingly, the ASCB considered this action to be sufficient to consider the complaint to be settled and not bother to uphold it or ask them to remove the advertisement or the unsubstantiated claims contained within it. I was quick to see that this precedent provided a massive loophole through which advertisers could make whatever therapeutic claims they want (so long as they don’t draw too much attention to themselves) while effectively escaping all regulation. I did all I could do in response to this decision: I appealed.

In my appeal I addressed both my concern with the poor precedent set by the decision and the claims made by the advertiser that the supplier’s website addressed my concerns. The website did partially address my safety concerns, but not enough to justify a lack of safety warnings. However, their attempt to address my claims as to efficacy and plausibility were laughable, and I reveled in the opportunity to use that wonderful word “quackery” in my appeal. You can see my appeal in its entirety at the bottom of this post.

After making my appeal on the 13th of February 2013, I checked the advertisement daily. On the 18th, it still appeared unchanged, but on the 19th the page was removed entirely. Soon after this, on the 21st, I heard back from the ASA that my appeal had been declined. Although the complaint’s decision is now listed on their website, I have received no more information regarding my appeal, and it is not mentioned alongside the complaint on their website.

I have set up a Google Alert so that if U-GO ever lists amber teething necklaces on their website again, I’ll know about it as soon as Google does. I also hope to use this complaint as precedent to have other similar advertisements removed. I’d hope to be able to have such complaints upheld without having to wait over 2 months for a decision on each complaint, but as this complaint was settled and not upheld I don’t know whether or not the ASCB will treat it as setting a strong precedent.

I encourage anyone else reading this to do the same if you ever see an advertisement for amber teething necklaces in New Zealand (or elsewhere, it’s just that this precedent is specific to New Zealand). For reference, the complaint’s identifier is 12/611.


The full details of the decision can be seen on the ASA’s website here. I have also hosted the Complaint Decision Details, including complaint and advertiser’s response, here on Honest Universe.

Here is the content of my appeal:


I would like to appeal the decision of complaint 12/611 on the basis that it is in the interests of natural justice that the matter be reheard.

While I appreciate that the advertiser apologised for the advertisement, the primary concern is that the therapeutic claims made in the advertisement are unsubstantiated and this still has not changed. If the advertiser is willing to admit that “had I seen this advertisement on our website I would have changed it immediately” then I expect they would not be opposed to changing it immediately now that it has been drawn to their attention.

I also appreciate the advertiser’s obvious wish to comply with the ASA’s standards, presumably as they have no wish to mislead consumers. However, leaving the advertisement unchanged until the product is made available again does nothing to address the concerns with unsubstantiated therapeutic claims. If they wish to make the product unavailable for any duration then that’s their prerogative, but regardless they should also remove the unsubstantiated therapeutic claims made about it.

The advertisement about which the complaint was made has not been altered or removed. This means that the unsubstantiated therapeutic claims made in the advertisement remain published and continue to potentially mislead consumers.

That the product being advertised is currently listed as “SOLD OUT” should have no effect on the decision made about this complaint. The issue at the heart of the complaint is the content of the advertisement, not the availability of the product. As that has not changed, the complaint should not be considered to be settled, in the same manner as a complaint made about the content of an advertisement for a product temporarily listed as “SOLD OUT” should not be dismissed as having no grounds to proceed.

If the content of the advertisement is to be changed in the future to comply with the ASA’s codes in that it will only make therapeutic claims if they have been substantiated then that is good, but in the meantime the unsubstantiated claims made in the current advertisement should not remain published. In lieu of being changed, the advertisement should be taken down so as not to mislead the public further.

By utilising the tactic used by U-GO in response to this complaint, it would be possible for any business to advertise a product with misleading information, potentially even intending to defraud consumers, but escape regulation by listing the product as “SOLD OUT” for as long as such content remains published. This does not prevent consumers from being misled by such an advertisement, and they may be influenced to return to purchase the same product when it becomes available again in the future, or to purchase an identical or similar product elsewhere. This behaviour does not exhibit the high standard of social responsibility required by the ASA’s Therapeutic Products Advertising Code principle 3.

As written in the ASA’s constitution, the primary object of the ASA is:
“To seek to maintain at all times proper and generally acceptible standards in advertising and any other activity regulated by the Code of Practice” (emphasis mine).
Providing advertisers with a loophole such as this that they might be permitted be publish misleading and unacceptable advertisements free of industry regulation goes counter to this goal.

==========

With regard to the advertiser’s claim that “The complaints raised by M. Hanna regarding strangulation and succinic acid are explained on the suppliers [sic] website”, upon reading the pages provided by the advertiser I am unconvinced. While my safety concerns are dealt with to a small degree (despite existing safeguards a warning would still be pertinent) the issues of substantiation and the plausibility of the succinic acid hypothesis are not.

I realise that, not being a New Zealand website, the content of the Amberizon website does not fall under the ASA’s jurisdiction, but for completeness’ sake I will discuss this here.

———-

On the “Healing properties of amber” page (http://www.amberizon.com/page/healing_properties_of_amber_healing_gemstone.html), the following is stated:

“Amber is a powerful chakra cleanser and healer. At a physical level, is [sic] imbues the body with vitality and has the power to draw disease out of the body. By absorbing pain and negative energy, amber allows the body to rebalance and heal itself. Amber alleviates stress.

Amber provides decisiveness. It strengthens your memory and intellect and helps with emotional calming and centering. It is an excellent grounding crystal, and transmutes negative energy to positive. Amber radiates a warm and bright energy.”

The vast majority of this content is meaningless pseudoscience. For example, there is no high-quality scientific evidence that “chackras” exist at all, let alone that they are relevant to health and can be affected by objects such as this.

“is [sic] imbues the body with vitality and has the power to draw disease out of the body” is similarly nebulous pseudoscientific nonsense, lacking both credibility and substantiation.

“By absorbing pain and negative energy” again is utter nonsense. Pain is not some substance that can be absorbed, and the phrase “negative energy” is inappropriate and, in this context, undefined.

I hope that it is absolutely clear to everyone that the second paragraph quoted above contains absolutely no sense or science. In fact this looks like a brilliant example of quackery, in which pseudoscientific nonsense is used to peddle a probably useless product. Although I am happy to note that U-GO has not quoted any of this nonsense in their own advertisement, that it considers this group “experts for this product” is concerning, to say the least.

That page also has this to say about amber teething necklaces:
“Wearing baltic amber close to the skin is a traditional European remedy for baby teething. A natural analgesic, amber will help calm a baby without resorting to drugs. Used for centuries in Europe, amber’s natural anti-inflamitory [sic] and pain relieving properties are perfect to soothe teething babies. Amber is fossilized resin, which warms against the skin, releasing it’s [sic]theraputic [sic] properties safely and naturally.”

This paragraph is practically identical to the one currently used by U-GO in their advertisement, which I have already discussed in my original complaint.

———-

The “Baby Teething Necklaces” page (http://www.amberizon.com/shop/amber_teething_necklaces_baby_teething_necklace_teething_beads_babies.html) says this:

“As a safety feature there is a knot before and after each bead, so that even in the extremely unlikely event of the string being torn, no beads are lost and there is no risk of choking. Amber teething necklaces are secured with a traditional screw clasp, not a hook and ring!”

I am glad to hear that the products have these safeguards in place, but I also feel it is important to note that they do not entirely negate the significant risks of choking and strangulation. It would be pertinent to include a similar warning to the one issued by the Ministry of Consumer Affairs about amber teething necklaces (http://www.consumeraffairs.govt.nz/for-consumers/goods/product-safety/keeping-kids-safe/amber-teething-necklace), namely that infants should be supervised at all times while wearing these necklaces.

It also seems relevant to point out that a consumer has previously complained about these necklaces (purchased from Amberizon) citing safety concerns despite the website’s reassurances after testing the necklaces themselves: http://www.scambook.com/report/view/36179/Amberizon-Complaint-36179-for-$113.15

It seems relevant that the Therapeutic Products Advertising Code part B2 requirement 2(a) specifies that:
“If the medical device has… specific warnings that may affect the safe use of the device… an appropriate warning must be given.”

———-

I have not been able to find any information on those 2 pages of the Amberizon website that respond to my complaints regarding the succinic acid hypothesis. Since originally making this complaint and researching the issue further, I have uncovered several more serious issues with this hypothesis that I have not seen dealt with and would be happy to detail if necessary.


After submitting my appeal, I was asked to clarify the “supplementary material” included in my appeal application. They seemed satisfied when I told them I was responding to the claims made by the advertiser in their response to my complaint, and that the information I discussed was found by following the links provided by the advertiser in their response.

I also sent them information regarding the recent decision by the UK’s ASA on another advertisement for amber teething necklaces, which was passed on to me by Autismum:

I thought it might be worth mentioning that new evidence relating to complaint 12/611 has been brought to my attention in the form of advice published by the UK’s Committee of Advertising Practice in response to a complaint upheld against an advertisement similar to the one in this complaint. I realise that regulation in the UK is not identical to here in New Zealand, but the information still seems relevant.

This advice can be found published online at this location: http://www.cap.org.uk/Advice-Training-on-the-rules/Advice-Online-Database/Amber-Jewellery.aspx


UPDATE:

After arriving home after this post was published and checking the mail, I now have the details of why my appeal was declined. I’m not sure why this information was not emailed to me, but at least I have it now.

The ASA ask that the details of their decision not be released publicly until after they’ve released them publicly themselves, so I’ll publish a follow-up post with this information once that has happened, on the 4th of March.

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Amber Teething Necklaces

When infants are born, both sets of teeth are concealed in their gums. Usually when they’re around 6 months old, their first teeth begin to protrude from their gums in a process known as teething. All of their teeth don’t come through at once, but for most babies all 20 of their deciduous teeth (colloquially called “baby teeth” or “milk teeth”) will have come through by their 3rd birthday.

During this time, some babies develop symptoms like irritability and disrupted sleeping. This can be frustrating and distressing for parents. While adults have the option of taking drugs for pain relief, parents generally feel understandably hesitant to pick the same solution for their babies’ discomfort. One common solution that is offered is “amber teething necklaces” – a necklace strung with beads of amber that supposedly can decrease the symptoms of teething.

Claims about how these work vary quite widely. Many sources cite completely implausible mechanisms, such as those described on Baby Amber Teething’s “About Us” page and Teething Made Easy’s “Amber Info” page:

The amazing quality of amber is ionization which helps protecting [sic] human body from various magnetic fields (amber absorbs some waves, including radioactive ones).

It is thought that amber is electromagnetic and produces large amounts of organic, natural energy

However, the most common claim I can find seems plausible. For example, here is what AmberTeethingNecklace.org’s “How Do Amber Teething Necklaces Work?” page says:

When a teething necklace made of authentic baltic amber lies against your baby’s skin, his body heat will warm the fossilized resin and allow the release of naturally-occurring succinic acid. When contact between the teething necklace and skin is maintained, succinic acid is absorbed and the healing, pain-relieving properties begin to take effect.

This claim seems to be repeated on the majority of sites selling amber teething necklaces. For example, here is what “U-GO” Products has to say on their Genuine BALTIC AMBER Teething Necklace product page:

Amber is a fossilized resin containing high levels of succinic acid, attributed for its pain relief and anti-anxiety properties.

When worn the bead warm [sic] against the skin, releasing its therapeutic properties safely and naturally.


Here is a simplified list of the claims involved in this explanation:

  1. Baltic amber contains succinic acid
  2. When worn against the skin, the amber is warmed up
  3. When the amber is warmed up, it releases succinic acid
  4. When the succinic acid is released, it is absorbed through the baby’s skin
  5. When the succinic acid is absorbed through the baby’s skin, it relieves teething symptoms

1. Baltic amber contains succinic acid

According to Anderson et al., amber can be classified into 4 classes. The most abundant ambers are “Class I”, and amber in this class is further classified into 3 sub-classes. Baltic ambers are “Class Ia”, and “incorporate significant amounts of succinic acid into their macromolecular structure”[1]. This quality also seems to be where another name for Baltic amber, succinite is derived.

2. When worn against the skin, the amber is warmed up

This seems straightforward. Skin temperature is generally slightly above room temperature (around 32-35 °C compared with 20 °C), and apparently teething can cause a slightly elevated temperature as well[2].

3. When the amber is warmed up, it releases succinic acid

This is a bit harder to believe. The melting point of succinic acid is 188 °C[3], so it definitely isn’t seeping out of the amber in liquid form, as generally implied in the descriptions of how amber teething necklaces work. However, it is soluble in water[3] so presumably it could dissolve in sweat but considering that sweat is used in part as an excretory process this seems unlikely to be an effective method of absorbtion.

Both of these mechanisms of absorption seem unlikely, however, when the age of amber and its exposure to the elements are considered. Amber is fossilised tree resin, and the process of fossilisation. Baltic amber in particular seems to be around 34-56 million years old[4]. In order for it to still contain succinic acid after all this time, it would seem reasonable to assume that it will not yield it easily. It doesn’t seem particularly plausible to me that raising its temperature a few degrees and moistening it slightly could do what 30 million years could not.

4. When the succinic acid is released, it is absorbed through the baby’s skin

This claim strikes me as slightly bizarre after finding out that succinic acid is an irritant[3].

5. When the succinic acid is absorbed through the baby’s skin, it relieves teething symptoms

The only documented therapeutic effect of succinic acid I was able to find is an antiallergenic effect[3]. There appears to be a paper entitled The Therapeutic Action of Succinic Acid, published in 1976 by The Academy of Sciences of the USSR, but unfortunately I can’t seem to find a version of it online anywhere.


Many sites selling amber teething necklaces cite Robert Koch, the winner of the Nobel Prize in Physiology or Medicine in 1905 “for his investigations and discoveries in relation to tuberculosis”[5], as having analysed succinic acid in 1886, when he “confirmed its positive influence and discovered that there is no risk of the accumulation of surplus amounts of succinic acid in the human organism, even after the introduction of considerable amounts into the body.”[6]

Pretty much every mention of Robert Koch I could find on a page about amber teething necklaces used very similar wording, especially something along the lines of “positive effect on the human body”. Because of this, I think they’re all coming from essentially the same initial source, but I’ve been unable to find that.

Although the majority of sites selling amber teething necklaces cite Koch’s research on succinic acid as occuring during 1886, as far as I’ve been able to tell what this is referring to is that in 1865 he studied the secretion of succinic acid in animals fed entirely on fat, under the supervision of Georg Meissner. During this time he also self-experimented with succinic acid, apparently eating half a pound of butter each day. However, he became so sick after continuing this for 5 days that he decided to limit his study to animals. In 1866 he graduated from medical school with the findings of this study being his dissertation.[7]

His dissertation, entitled Ueber das Entstehen der Bernsteinsäure im menschlichen Organismus, was published in 1865 in a journal called Zeitschrift für rationelle Medizin[8]. I was able to find an online copy of his dissertation, in its original German, here.

I’ve read a machine translated copy, but unfortunately the machine translation is difficult to understand. It seems that the dissertation describes the appearance of succinic acid in the urine of rabbits, dogs, and humans after certain meals. Presumably this is the origin of the claim that “there is no risk of the accumulation of surplus amounts of succinic acid in the human organism, even after the introduction of considerable amounts into the body”. I haven’t been able to find the source of the claims of it having a “positive effect on the human body”.


In terms of how long amber necklaces are supposed to last, the information I could find tends to say that they should last indefinitely, potentially even being used across multiple generations. However, this seems incompatible with the idea that the amber works by essentially being a drug dispenser. Without an unlimited supply of the drug, succinic acid in the case, the dispenser should be expected to eventually run out and no longer be effective.

I actually managed to find one website, Teething Tots, that claimed that amber is “ideal as a natural (no drugs) homeopathic product for babies and children”. I find it quite ridiculous that a site purporting to sell homeopathic products describes the mechanism of action of this product as being precisely counter to how homeopathy supposedly works, i.e. that the active ingredient is actually present and counters symptoms, as opposed to no active ingredient being present and using an ingredient that would cause similar symptoms to those being treated.

About 3-8% of Baltic amber is succinic acid[6]. The necklaces apparently weigh around 5.5-8 g[9], which means they contain between 165 and 640 mg of succinic acid. Supposedly, this is enough to remain effective over multiple generations. In comparison, a single recommended dose of the common analgesic paracetamol for infants aged 6-24 months is 120 mg[10]. If an effective dose of succinic acid were assumed to be the same amount (I don’t mean to actually make this assumption, I’m just using it as an illustrative comparison) then an amber necklace would contain between 1.5 and 5.5 doses. Essentially about a day’s worth.

It’s not unheard of for taking a very low dose of a drug over a long period of time to have benificial effects, however. Fluoride, for example, is generally present in low levels in drinking water, and fluordating drinking water in this way is a well-documented way to reduce dental cavities. I have not been able to find any evidence, however, to support the hypothesis that chronic low dosages of succinic acid is an effective treatment for pain relief.

I have also not been able to find any evidence that supports the hypothesis that skin contact with Baltic amber is an effective treatment for the symptoms of teething. The evidence simply is not there. In fact, when searching for information on amber teething necklaces in the medical literature, the only mentions I could find were those describing it as “a quack remedy”[11][12].

Although it’s generally recommended that babies don’t wear the necklaces while unsupervised[13], various sources recommend wrapping it around their ankle while they’re sleeping.


I submitted a complaint to the Advertising Standards Authority regarding the advertisement on the U-GO website, which can be seen archived here – Genuine BALTIC AMBER Teething Necklace – MULTICOLOUR (as of 14 December 2010).

I have received the details of the decision but the ASA has asked me not to disclose them until they release the decision to the media. Once that has happened, you can expect to see a follow-up post here.


I’d like to mention that my initial interest in this topic was motivated by a post made on the Skeptoid blog by Autismum. Here’s a link to that post: The Prettiest Strangulation Device for Your Baby. She’s also written a follow-up post: Amber for Teething Update.


[1] Anderson, K; Winans, R; Botto, R (1992). “The nature and fate of natural resins in the geosphere—II. Identification, classification and nomenclature of resinites“. Organic Geochemistry 18 (6): 829–841. doi:10.1016/0146-6380(92)90051-X

[2] Teething Tots KidsHealth. Retrieved on 2012-12-09

[3] SUCCINIC ACID – National Library of Medicine HSDB Database Hazardous Substances Data Bank. Retrieved on 2012-12-09

[4] Fossil Amber The Virtual Fossil Museum. Retrieved on 2012-12-09

[5] The Nobel Prize in Physiology or Medicine 1905 Nobelprize.org. Retrieved on 2012-12-09

[6] Amber Information All About Amber. Retrieved on 2012-12-09

[7] Koch, Robert (1843-1910) (World of Microbiology and Immunology) Study Guide & Homework Help eNotes.com. Retrieved 2012-12-09

[8] Robert Koch Facts, information, pictures Encyclopedia.com. Retrieved on 2012-12-09

[9] amber teething necklace Huckleberry Baby Shop. Retrieved on 2012-12-09

[10] Doses change for child paracetamol medicines like Capcol – Health News NHS Choices. Retrieved 2012-12-09

[11] Taillefer, A; Casasoprana, A; Cascarigny, F; Claudet, I (2012). “Infants wearing teething necklaces“. Archives de Pédiatrie 19 (10); 1058-1064. doi:10.1016/j.arcped.2012.07.003

[12] Doherty, F (1990). “The anodyne necklace: a quack remedy and its promotion.Medical History 34 (3); 268-293.

[13] Amber teething necklace – Keeping Kids Safe Ministry of Consumer Affairs. Retrieved on 2012-11-29

How to Read Medical Advertisements

Lately, I have been familiarising myself with how medical advertisements are regulated here in New Zealand. In doing this, I have come to realise that regulatory bodies do not always interpret advertisements in the same way as I would expect the public to interpret them.

This sort of discrepancy can be, and frequently is, exploited by advertisers of medicine, both legitimate and less so. While it may be in the advertisers’ interest to have these differences in interpretation as it allows them to mislead the public about the effectiveness of their product, for the exact same reason it is not in the best interest of consumers.

In this article I describe how advertisers and regulators appear to interpret medical advertisements, and the implications of their interpretations. I hope that understanding this might enable others to understand what these ads are really saying. It is my sincere hope that, after reading this, you will never look at another medical advertisement in the same way again.


The first step I took in this project was familiarising myself with the codes of the Advertising Standards Authority (ASA), particularly those relating to therapeutic products and services. Their codes for weight management and ethics were also relevant. Based on these, I’ve submitted 11 complaints to the ASA since my first complaint last year, and I have more drafts that haven’t been submitted yet for various reasons.

As well as looking through the ASA’s codes, I’ve searched through previous decisions made by the Advertising Standards Complaints Board (ASCB) so I might better understand the codes’ application. The ASA website lets you search decisions from 2006 onwards, but older decisions can still be found by searching on Google within 203.152.114.11*.

If the ASCB decides to uphold a complaint, they request that the advertiser voluntarily withdraw the advertisement. As far as I am aware, it is at least very uncommon for an advertiser to refuse this request (the ASA website states that “This request is invariably followed.”) but the ASA does not have any actual legal authority with which they can enforce their decisions and they are unable to investigate breaches of the law as they only have jurisdiction over their codes.

When it comes to statutory regulation, Medsafe (part of the Ministry of Health) administers the Medicines Act 1981 and Medicines Regulations 1984, and the Commerce Commission enforces the Fair Trading Act 1986. For the most part, however, the advertising industry regulates itself via the ASA.


In reading past ASCB decisions about therapeutic advertising, I noticed that the ASCB frequently recommends the use of “TAPS”, the Therapeutic Products Pre-vetting System. Information on TAPS is available on the Association of New Zealand Advertisers (ANZA) website: TAPS.

Unfortunately, and somewhat counterintuitively, TAPS seems in practice to serve the opposite purpose of the ASA. The ASA and their codes mainly focus on protecting the consumer, particularly from misleading claims. In contrast, TAPS seems to focus on allowing advertisers to make whatever claims they want without running afoul of the ASA or the law. To see an example of this, see TAPS guideline 13, Examples of Health Claims in contrast to Therapeutic Claims Digestive System.

In this guideline, TAPS details the difference between a “therapeutic claim” and a “health claim”. “Health claims” are defined within this guideline as…

claims which support the normal physiological function.

“Therapeutic claim” essentially has 2 sets of definitions. One can be found within the ASA’s Therapeutic Products Advertising Code and the other in the Medicines Act 1981. The ASA defines “Therapeutic Use”, where a therapeutic claim is a claim for therapeutic use. Medicines Act defines “Therapeutic Purpose”, where a therapeutic claim is a claim for a therapeutic purpose. Both of these sets of definitions are fairly broad.

The ASA’s Therapeutic Products Advertising Code defines therapeutic use as…

Therapeutic use

  1. means use in or in connection with:
    1. preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in humans;
    2. influencing, inhibiting or modifying a physiological process in humans;
    3. testing the susceptibility of humans to a disease or ailment
    4. influencing, controlling or preventing conception in humans;
    5. testing for pregnancy in humans; or
    6. the replacement or modification of parts of the anatomy in humans; and
  2. includes any other use which the law provides shall be treated as a therapeutic use for the purposes of the code; but
  3. does not include any use which the laws provides shall not be treated as a therapeutic use for the purposes of this code.

The Medicines Act defines a therapeutic purpose as…

Meaning of therapeutic purpose
In this Act, unless the context otherwise requires, the term therapeutic purpose means—

  1. treating or preventing disease; or
  2. diagnosing disease or ascertaining the existence, degree, or extent of a physiological condition; or
  3. effecting contraception; or
  4. inducing anaesthesia; or
  5. altering the shape, structure, size, or weight of the human body; or
  6. otherwise preventing or interfering with the normal operation of a physiological function, whether permanently or temporarily, and whether by way of terminating or reducing or postponing, or increasing or accelerating, the operation of that function, or in any other way; or
  7. cleaning, soaking, or lubricating contact lenses.

TAPS guideline 1 – Therapeutic Claim/Purpose – has this to say about whether or not products are to be considered medicines:

Whilst natural, herbal, marine and dietary supplement products are not classified as medicines they would come under the Medicines Act for two reasons that might not be obvious. This means that certain herbal or dietary supplement products would be deemed to be a medicine for two reasons. This is because of a) a therapeutic claim as per the Medicines Act or b) the ingredients in the product which could be classified as a medicine under the Classification of Medicines

I’m not a lawyer, and in reading through the Medicines Act I haven’t been able to determine which section in particular causes this outcome. If anyone is able to shed any more light on this I’d be very grateful.

What I get from this, though, is that any advertisement that includes a therapeutic claim as defined in section 4 of the Medicines Act (quoted above) should be treated as a medical advertisement.

The guideline goes on to describe how advertisers can effectively circumvent this (emphasis mine):

a company may still advertise a product without getting consent [from the Minister of Health] and without a “therapeutic claim”. Essentially there is leeway for certain health or nutritional claims or statements relating to the normal physiological or biochemical function. This is covered generally by such statements as “assists or supports the normal physiological function”. Even terms like “enhancement” “fortify” and “improvement” would need to be used with care and would generally be a problem, as they imply an improvement or acceleration to the normal function. Often it is a simply a question of wording. For example, a statement such as “provides nutritional support for a healthy immune system” escapes therapeutic specificity whereas, “prevents, treats or cures flus or viruses” attracts liability and would be prohibited under the Medicines Act.

Here are some examples of “health claims” from TAPS guideline 13, which it claims “would not breach the Medicines Act”:

Aids healthy digestion

Helps restore normal bowel flora

Aids normal bowel function

According to TAPS, at least, none of the above claims would qualify for a therapeutic claim. This means that they would be considered to not require substantiation. For this reason, it is of the utmost importance for consumers to be able to distinguish between a therapeutic claim and a health claim. Therapeutic claims in advertising are required both by law and by industry regulations to be substantiated, whereas it seems health claims may be freely made without any supporting evidence whatsoever.


TAPS approval for an advertisement is something that the ASCB considers when an advertisement has been complained about, but it is not enough to prevent a complaint from being upheld. Here are some examples of previous ASCB decisions in which a complaint was upheld due to a breach of the Therapeutic Products Advertising Code despite the advertisement having attained TAPS approval:

Given the recommendations in the TAPS guidelines, it should be reasonable to assume that any advertisement with TAPS approval which makes health claims instead of therapeutic claims does so because it would be unable to substantiate those claims if a complaint were submitted to the ASA. It’s also likely that any claims containing a modifier such as “may” or “could” will be similarly unsubstantiated.

Advertisements with TAPS approval may cite a TAPS approval number, but as far as I’ve been able to find this gives no more information than that the advertisement has been approved, as there is no publicly accessible database of TAPS approvals and their details that I have been able to find.


Many complaints have not been upheld by the ASCB because the advertiser successfully managing to convince them that no therapeutic claims were made, even though the advertisement contains content likely to be interpreted by the public as a therapeutic claim. For example, take this complaint: 07/113 – BioMag Television Advertisement, which was not upheld by the ASCB.

For those of you unfamiliar with this product, it’s a magnetic underlay for your bed that is apparently intended to relieve pain. Here are some statements from a Woolrest Biomag NZ representative in response to complaint 07/113:

I have never said “underlays increase circulation“, on television. In fact I haven’t mentioned the word circulation this year, and in previous years under TAPs [sic] guidance I have only ever spoken of “supporting circulation“.

The word arthritis has never been used in our TV ads, in fact we do not refer to any specific pain conditions and never have.

[The complainant] also alleges we say the BioMag relieves pain. This is wrong. We are always careful to say it “could” relieve pain, as indeed tens of thousands of our clients can attest.

This sort of behaviour is representative of advertisers of products like this when responding to ASA complaints. Typically, their defense relies on convincing the ASCB that their advertisement contains no therapeutic claims, as opposed to providing substantiation for the claims they’ve made. For another example, see complaint 12/393, which I’ve already mentioned in the list above as having been upheld despite TAPS approval. The advertiser’s response to this complaint rested on the argument that no therapeutic claims were contained within the advertisement. In this case, the ASCB disagreed and, as the claims had not been substantiated, the complaint was upheld.


There are 2 main ways in which advertisers avoid the use of therapeutic claims.

First, by making “health claims”, which sound like therapeutic claims but tend to be technically meaningless (what the TAPS guidelines have called “escaping therapeutic specificity”). For example, a claim that a product “supports normal immune function” sounds as though it means it supports or improves immune function, but the advertiser could defend the claim by saying that by specifying that it supports normal immune function it does not imply that any physiological process is affected and therefore does not constitute a therapeutic claim.

Second, by using language in such a way as to not make an “absolute” claim. Often this involves qualifiers such as “may” and “could”, but it can also include words that normally would seem to imply therapeutic claims to the public, such as “supports”. For example, the complaints board decided not to uphold complaint 12/402 based partly on this:

Turning to the other claim that “the base of apple cider vinegar … assists your body in breaking up the mucous associated with winter ills and chills” the Complaints Board said the word “assists” was not an absolute claim.


Because of this, when reading, watching, or listening to a medical advertisement it is important to do a few things to make sure you are not misinterpreting it:

  • Identify “health claims”, as opposed to “therapeutic claims”, and realise that they most likely have not been substantiated.
  • Interpret every positive claim in the most conservative way possible. For example, if a product “may reduce pain”, it probably means “may not reduce pain, and hasn’t been proven to reduce pain”.
  • Interpret everything literally. Exaggeration and “puffery” are typically not allowed in medical advertisements, so you shouldn’t need to worry about misinterpreting something in this way. For example, if a product “helps resist winter ills and chills”, this does not mean “helps resist colds and the flu”. This also means that “supporting normal function” does not mean “supporting function”, as “normal function” refers to function when not interfered with.

Expect advertisers to always put their best foot forwards. If they are allowed to say their product “relieves cold and flu symptoms” then that is what they will say. If they say something like “helps you overcome winter ills and chills naturally” instead, it’s likely because they are not allowed to make the former, more definite claim.


Here are 2 examples of advertisements that are misleading yet manage to escape regulation.

1. Eken power bands: Golf Centre | Your Chemist

ASA complaint 12/393, already mentioned twice above, was upheld because an advertisement for this product implied unsubstantiated therapeutic claims:

Designed to assist with Strength, Balance, Flexibility, Endurance

Now that they cannot make such claims, the advertisements listed above instead simply list the same attributes without any description. It is still implied that the product is intended to improve the attributes, but not in such a way as a complaint would be likely to be upheld.

2. Detox foot patches: GrabOne

ASA complaint 12/502 was settled after someone complained that “the advertisement contained false and misleading claims that were not supported with evidence”. In response to this, the advertisers changed the advertisements so that the same false, misleading, and unsupported claims are still implied but are not made in such a way as to make a complaint likely to be upheld.

Note that this advertisement has a TAPS approval number. Instead of acting in the public’s interest by not allowing the advertiser to make false claims, they have helped them to make the same claims in such a way as the public will interpret them as claims and the regulators will not, effectively allowing them to escape regulation.


Finally, remember that not every advertisement is in line with the ASA’s codes and the relevant legislation. If you think an advertisement makes a therapeutic claim that is not valid and/or has not been substantiated, I encourage you to research it further and, if it appears your concerns are warranted, submit a complaint to the ASCB. Unsubstantiated therapeutic claims are in breach of the ASA’s Therapeutic Products Advertising Code principle 2.


*I have set up a search engine for this within my installation of Google Chrome, so I can search previous ASA decisions by entering “ASA ” into Chrome’s Omnibar on my computer. To do this yourself, click “Manage Search Engines…” inside Chrome’s Settings, scroll down and enter the following details to create a new search engine:

  1. ASA Complaints
  2. asa
  3. https://www.google.com/search?q=site%3A203.152.114.11+%s

Now, for example, if you want to search for “homeopathy” within previous ASA decisions you would just need to type “asa homeopathy” into Chrome’s omnibar and it will find all decisions containing the term “homeopathy”, including those from before 2006 like this decision from 2003.