Boots Opticians’ advert for its Boots Protect Plus Blue (BPPB) lenses has once again landed the multiple in regulatory hot water over misleading claims about the products.
The latest sanction was handed down by the General Optical Council during a two-day fitness to practise case last week. The hearing resulted in a fine of £40,000 and determinations of misconduct and impaired fitness to practise.
The advert, placed in The Times magazine on January 24, 2015, claimed that many modern gadgets, such as LED TVs and smartphones, as well as energy-saving light bulbs, emitted a certain type of blue light that could cause a person’s retinal cells to deteriorate over time. The multiple went on to say its BPPB lenses filtered harmful blue light and eased eye strain and fatigue.
Last week’s hearing followed an Advertising Standards Authority (ASA) ruling in October 2015 which said while the advert acknowledged and referenced other factors that could affect people’s eyes, it considered that consumers would interpret it to mean that by filtering out harmful blue light they could reduce the deterioration of their vision later in life.
The basis of the GOC’s allegations focused on how this advert was allowed to be published and the failure to comply with ASA codes. It alleged the multiple did not ensure copy was not misleading to purchasers, with failures on obtaining sufficient evidence on the eye damage claims and the amount of blue light the lenses filtered out. It was further alleged that the final copy of the advert was not approved by a GOC registrant.
The hearing
Boots admitted the particulars of the allegations, which were accepted by the committee. The multiple’s legal representative made no submission for misconduct and argued that there was no impairment because the misconduct had been remediated and was unlikely to be repeated.
Boots Opticians director of professional standards Eddie Watson gave evidence during the hearing. Watson provided a witness statement prior to the hearing, from which certain key matters were expanded on under cross-examination by legal teams. He began by explaining what was meant by blue light and its harmful elements. He said the BPPB lenses, which were manufactured by Essilor, filtered out 20% of ‘bad’ blue light.
Commenting on what went wrong in this case, Watson said the advert overstated dangers of blue light, implying that every part of the blue light spectrum was dangerous and emphasised the dangers of blue light emitted from digital devices, instead of the primary sources such as daylight.
When asked what the impact of the case had been on the company, Watson said the company’s reputation as a trusted retailer for nearly 170 years had been damaged.
The advert that resulted in the complaint with the ASA and subsequently, the GOC, had not been seen by Watson at all prior to being published. In fact, Watson said the first time he had seen the advert was when he had sight of a draft copy of the ASA complaint, because it was originally passed to the commercial team. A number of iterations of the advert had been passed around before it was published and Watson said he believed a registrant had seen and approved it. He admitted that had he seen its content, it would not have been approved.
In the months following the ASA ruling in 2015, Watson said Boots Opticians management visited all its practices to provide all staff with new guidance on blue light lenses.
However, some of this information appears not to have been taken on board, as a BBC Watchdog programme aired on November 9, 2016, highlighted undercover investigations which indicated that some members of staff at the multiple were still unclear as to what could and could not properly be stated regarding blue light and blue light control lenses. Following the Watchdog programme Boots removed the word ‘harmful’ from all internal and promotional material as of 29 March, 2017, and BPPB branded lenses were later removed from the company’s range of lenses on April 12, 2017. Boots provided the committee with details of the Watchdog sting, which was noted by the panel.
Preventative steps
Watson told the hearing a new approval structure had been implemented to stop a case such as this happening again. Discussions now must include three parties: The Boots trading law team, the commercial department and Watson’s professional standards team. This ensures that adverts cannot be published without the approval of all three departments, said Watson. In practices, recommendations for blue light filtering lenses can only be made by an optometrist.
In trying to get a grasp of the financial benefit that the company had accrued from selling the lens, the committee quizzed Watson and professional services offer Gordon Carson on the volume it had sold between the time the advert was published and when they were de-listed in April 2017. Neither Watson or Carson could arrive at a figure, but said approximately 6% of patients opted for a BPPB lens, which cost an additional £20. The committee therefore concluded that financial advantage had been gained by Boots.
Findings
In its verdict, the committee said it took the view that the breach fell far below the standards to be expected of a business registrant.
The determination on misconduct said: ‘The committee also took the view that fellow business registrants would consider the unsubstantiated and misleading health claims to be deplorable. Although the admitted facts relate to a single advertisement, the committee noted the business registrant has more than 600 stores nationwide and just as the advertising campaign was designed to reach a wide audience, the impact of the failings also potentially affected a large number and wide range of patients.
‘The committee concluded that the unsubstantiated and misleading claims, in a national publication, by one of the largest national providers of optical services, is sufficiently serious to amount to misconduct.’
On deciding whether the company’s fitness to practise was impaired, the committee said it considered that Boots had taken some remedial action, but that this was not until after the ASA had stepped in. The committee also appeared to take a dim view of the company’s inward and forward looking measures it had taken and the fact that no proactive steps had been taken to contact patients that had purchased the BPPB lenses, nor had that even been discussed. ‘A finding of impairment is also required to maintain the high standards of the profession,’ said the committee in the determination.
A financial penalty was deemed an appropriate sanction by the committee. The company faced a maximum sanction of being erased from the GOC registers, but this was considered disproportionate, particularly as there was a significant public interest in ensuring that Boots’ status as a national provider of optical services was not prevented from continuing to provide healthcare for the benefit of the public.
In levying the fine £40,000, the committee considered it to be a figure which Boots had resources to meet and one that sent a signal to the registrant, the profession and the public that bodies corporates had high standards of behaviour expected by registrants. Some will question whether a £40,000 fine against a company with estimated turnover of £358m, sends out a strong enough message. The maximum fine the committee could sanction was £50,000, set out in the Opticians Act.
In statement to Optician following the hearing, Watson said: ‘At Boots Opticians, we take our responsibilities to our patients and customers very seriously, and work to make sure they get the best possible care for their eyes, including access to the latest lens technology. We accepted the ASA ruling on our advert in October 2015 and we’re sorry that our internal processes were not correctly followed in approving this advertisement in 2015.
‘Since that time, we have worked to further strengthen the approval process we use and are confident that such an incident will not happen again. To avoid any further confusion, we can confirm that we have taken the decision to stop selling Boots protect plus blue lenses. An alternative branded blue control lens is available by optometrist recommendation only.’
Dispensing with opticians?
The issue of optometrist-only recommendation potentially raised another issue for Boots. Part 4 of the GOC Code of Conduct states businesses should ensure individual registrants are always freely exercise professional judgement in the best interest of patients. The new policy implemented by the multiple had the potential to infringe on the practice remit of dispensing opticians.
A spokesperson for Boots Opticians responded: ‘Our dispensing opticians are still encouraged to recommend blue control lenses to our patients who they consider are appropriate to wear them. We have asked them to express their recommendation to the optometrist who has undertaken the eye examination, as the optometrist has the responsibility for the overall clinical care of the patient.’
The Association of British Dispensing Opticians confirmed to Optician it was aware of the situation that could affect its members: ‘We understand the position that Boots has taken and why. However, we do have concerns about the ability of dispensing opticians to exercise their full professional judgement and will continue our constructive dialogue with Boots Opticians on this issue.’
