Advertising Standards Agency Comments on Lawful Proficiency of Hand Arm Vibration Monitoring Watch

In edition 266 of BC Disease News (here), we reported on the possible benefits of Reactec Ltd.’s HAVwear wrist-worn device, supposedly capable of tracking and reporting hand-arm vibration (HAV) in real-time. It had been publicised that the product, first released in 2016,[i] could ‘reduce the guesswork when managing vibration exposure’.

Given that the Building Safety Group (BSG) observed a 33% increase in construction-related HAV breaches in 2018, it appeared that HAVwear could be of genuine use to defendant employers (and their insurers) when defending alleged breaches of the Control of Vibration at Work Regulations 2005 – especially Regulation 5 (duty to conduct risk assessments).

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However, on 14 May 2018, the Industrial Noise & Vibration Centre (INVC), an engineering consultancy, called out Reactec for falsely promoting HAVwear’s vibration risk management competency. On its webpage, INVC stated:

‘Once more there are claims that wrist/glove mounted vibration transducers can be used to assess HAV risk in operators as per the British Standard (BS 5349). No they can’t’.

By consequence, it was argued that, because HAVwear does not measure vibration magnitude (m/s2), so-called ‘real-use’ HAVwear data cannot be equated with the formula for calculating HAV exposure action values (EAV) / exposure limit values (ELV) (Regulation 4), located in Schedule 1 Part 1 of the Regulations.

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The INVC webpage further indicated that HAVwear was not capable of evaluating HAV risk because the Health and Safety Executive (HSE) had stated, in May 2017 guidance, relating to the 2005 Regulations: 8 Questions about Vibration Exposure Monitoring, that:

‘There is currently no wrist or glove mounted device which measures vibration suitable for use in a vibration risk assessment’.

Instead, HSE guidance states that, if HAV measurements are to be compliant with the British Standard they must be taken with a transducer that is in direct contact with the vibrating surface, and/or with a HAV measurement system, on the vibrating surface at the point where the vibration enters the hand(s).

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As a result of INVC’s critical assessment of HAVwear, Reactec reported INVC’s advertising to the Advertising Standards Agency, on the basis that the following claims were ‘misleading’ and could not be substantiated:

  1. ‘… as wrist (or glove) mounted transducers do not measure according to ISO/BS 5349, the data they produce is not related to the EAV or the ELV dose values and cannot be used for comparison with them in a risk assessment’.
  2. ‘Now imagine you are the barrister for a HAV injury claimant … just how easy would you find it to drive a coach and horses through a risk management defence based on wrist-mounted vibration data capture? Potentially a very costly mistake …'

Is the HAVwear watch incapable of measuring EAV / ELV, thereby rendering a hypothetical breach defence, based on HAVwear data, ineffective?

On 3 April 2019, the Advertising Standards Authority (ASA) Council published its decision, which can be accessed in full, here.

In summary, ASA rejected Reactec’s complaints, the effect of which is that INVC’s advertising was not ‘misleading’, nor was it ‘unsubstantiated’. INVC had not breached rules 3.1 and 3.7 of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), respectively.

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Regarding INVC’s 1st claim, it was fundamental to ASA’s finding that HSE had contacted the Agency to confirm ‘that the Regulations and Standard made it clear that vibration was characterised by the acceleration of the surface of the tool in contact with the hand. They said that measurements taken elsewhere, including the wrist, would not provide the data required by the Standard or the Regulations’.

It was construed that potential buyers would read INVC’s claim and understand that HAVwear was unsuitable for undertaking risk assessments of hand–arm vibration – this was ‘unlikely to mislead’.

Moving on to the 2nd claim, the Council made an identical finding. Since HAVwear does not measure vibration where the surface of the tool makes contact with the hand, it was not ‘misleading’ for trading employers to interpret that HAVwear use could, ‘objectively’-speaking, make defending a HAVS claim ‘problematic’, thereby putting them ‘at risk of financial loss’.

Contending with ASA’s ruling, Reactec CEO, Jacqui McLaughlin, explained how the company and its HAVwear product may be affected:

‘This is a complex but fundamentally important area of employee health and safety and it is frustrating that those with a commercial interest who wish to discredit wrist worn devices ignore the fact that Reactec’s HAVwear offers a mode (referred to as TEP) which fully complies with regulations and HSE guidance, and is available in addition to the real use assessment, developed for individual's protection.

The ASA’s judgement was in no way a comment on the HAVwear’s credibility but a judgement on our objection to the INVC published opinions on the use of HAVwear to perform a risk assessment in compliance with the ISO5349 standard. Risk assessments fully in compliance with ISO5349 are intermittent activities which yield a view of what risk someone may face when they subsequently carry out the activity. HAVwear is not promoted for this purpose. It is promoted to provide everyday assessment of HAV exposure risk, for which there is no current standard. The HSE advise within L140 that the vibration magnitude needed for a HAV exposure assessment, need not be measured, but must be representative of the real-time activity undertaken. There is an increasing body of International and independent evidence validating that HAVwear’s real-use approach to assessing HAV exposure, while novel, is a true reflection of health risk.

We all know the impact that Vibration White Finger has on the lives of the 300,000 people in the UK alone who live with this debilitating and permanent condition. With a further 2 million* people at risk of HAVS, the Reactec team intends to focus our efforts on helping industry to assess and mitigate the risk that these people face’.[ii]

 

[i] ‘About Reactec’ <https://www.reactec.com/about_us> accessed 9 May 2019.

[ii] ‘ASA questions HAVwear’scredibility’ (Health & Safety Matters) <https://www.hsmsearch.com/ASA-questions-HAVWEARs-credibility> accessed 9 May 2019.