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.

Misusing the Term “Doctor” in New Zealand Advertising

Earlier this year, I saw an infomercial on TV for “Dr Ho’s decompression belt”. This was only a few days after I’d encountered this post on Science-Based Medicine, which mentioned “decompression therapy” in a post entitled “Chiropractic Gimmickry”, so my alarm bells were ringing and I wrote down as much detail about the ad I could in one of my pocket notebooks.

Later, when I was able to look the product up online, it seemed that the only official claims made of it were related to pain relief. As far as I could tell, that seemed consistent with the evidence, so I decided not to pursue that avenue. However, I did find that so-called “Dr Ho” is not a medical doctor, but instead a “Doctor of Chiropractic and Acupuncture”.

For quite some time now, I’ve had a link in my bookmarks to an article published in 2008 in the New Zealand Medical Journal entitled Use of inappropriate titles by New Zealand practitioners of acupuncture, chiropractic, and osteopathy, and this situation reminded me very strongly of that article. To sum it up, “Doctor” is not a protected term in New Zealand, but there are laws that prevent it from being used in such a way as to imply that a person is a medical doctor when, in fact, they are not. That study outlines the law and shows roughly how common such misrepresentation appears to be (spoiler: very common). The law in question is in the Health Practitioners Competence Assurance Act 2003.

In response to this, I wrote in to the ASA (Advertising Standards Authority), asking if anyone there could clarify for me when it is and isn’t appropriate to use the term “Doctor” in advertising. I’ve inserted this original message at the bottom of this post.

After about a month and a half, during which I’d received a couple of notifications to let me know that they were looking into it, I received an email to let me know that the matter has been settled. About a week after that, I was sent this ruling.

It seems that the people responsible for the advertisement have altered it to clarify that Dr Ho is a chiropractor, and not an MD as was previously implied. I’m sure the distinction will be lost on most viewers, but I’m happy to consider this a victory. Even though ads tend to have short lifetimes, the fact that a precedent has been set makes me optimistic.

I would encourage other people living in New Zealand (and elsewhere, of course, but the law may differ in other countries) to make similar complaints when they observe this behaviour. If you do so, it would probably be useful to refer to this complaint and, if appropriate, the relevant provisions listed in the ruling:

Principles 2 and 3, and Part B2 Requirement 3 of the Therapeutic Products Advertising Code.

Here’s the original email I sent:


To whom it may concern,

I saw an infomercial on TV last Sunday evening (19/08/2012, around 7:30-7:45 on Prime) for “Dr. Ho’s decompression belt”. This advertisement raised my suspicions as, a couple of days earlier, I’d read an article on the highly reputable website Science-Based Medicine that described “decompression therapy” as something which is commonly recommended by chiropractors for dubious reasons.

As far as I’ve been able to tell, the only claims made for this product (that it can relieve back pain) don’t seem illegitimate, and although I’ve found numerous references to the product having been “clinically tested” and “scientifically proven” without any corroborating references I’m not sure if official promotions have made such claims. However, in my search I discovered that “Dr. Ho”, as he described himself in the infomercial where he authoritatively promoted the product, is not a medical doctor. Instead, he is a “Doctor of Chiropractic and Acupuncture”.

The Health Practitioners Competence Assurance Act 2003 states that “a person may only use names, words, titles, initials, abbreviations, or descriptions stating or implying that the person is a health practitioner of a particular kind if the person is registered, and is qualified to be registered, as a health practitioner of that kind”. I was under the impression, from the use of the term “Doctor” in this advertisement, that “Dr. Ho” was a licensed medical doctor and therefore actually had the authority with which he promoted his product.

My conclusion that this use of the term “Doctor” can be seen as misleading, and therefore violate the Health Practitioners Competence Assurance Act 2003, when used in such a context by non-medical doctors is corroborated by this article from the New Zealand Medical Journal.

I’d very much appreciate it if someone with authority on the matter could clarify for me just what is and isn’t acceptable when it comes to referring to oneself as “Doctor” in a medical context within advertising. Can such behaviour be considered a breach of advertising standards, or is it considered acceptable? If it is considered acceptable, is there a list of qualifications which allow one to call themselves “Doctor”, or would no qualifications be necessary?

Thank you in advance,

Mark Hanna