BREXIT – The Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) Codes include many rules which seek to reflect significant pieces of EU law or UK law that has been made to implement EU law. As far as CAP is aware, the same rules and laws will apply on the day after exit as on the day before. This News Article explains the position further.
Advice from the Medicines and Healthcare products Agency (MHRA) suggests that hangovers and their symptoms are considered to be adverse medical conditions. The term “hangover” is associated with symptoms such as nausea, dehydration, headache, vomiting and stomach upset.
- Is it a medicine?
Because claims to treat or alleviate the symptoms of hangovers are medicinal, they can only be used in relation to ads for medicines that are licensed for that purpose.
Marketers are not permitted to advertise an unlicensed product as a hangover cure or a method to prevent hangovers. That applies to ads that either use the word “hangover” explicitly or which contain euphemisms for it such as “the morning after” or similar.
Herbal products for the relief of the symptoms of hangover might also run into regulatory problems with the MHRA. The MHRA previously classed Artichoke Active, as a medicine because it was presented for the relief of the symptoms of hangovers and the prevention of liver disease.
- Is it a food, drink or a supplement?
Claims that state or imply a food (or drink) prevents, treats or cures human disease are not acceptable in marketing communications for food products (Rule 15.6.2).
A reduction of disease risk (“RDR”) claim will usually refer to a specific risk factor for a particular disease which can decreased by consuming a food. This is not the same as a claim to prevent the disease (rule 15.6.2)
In 2020 the Advertising Standards Authority (ASA) assessed an ad for a drink product called “After-Alcohol Revival Drink” and where the ad also included the claims “With around 30 million weekly alcohol consumers in the UK relying on sugary drinks and caffeine to try and replenish their bodies after a night out, it’s incredible that it has taken this long to produce a healthy product that positively deals with the after-effects of alcohol” and “positively deal with the after-effects of alcohol”. The ASA considered the claims would be understood by consumers to mean that the product could help to prevent, treat or cure a hangover. Because the ad implied that the product could help to ‘revive’ people from the effects of alcohol consumption, the ASA therefore ruled that ad made unacceptable claims for a food product. (Bounce-Back Drinks Ltd, 22 January 2020)
- Is the ad irresponsible?
References to the treatment of hangovers or claims that are likely to have the same meaning, could be considered to encourage excessive alcohol consumption and/or be socially irresponsible.
Even medicines that are licensed for overindulgence have been found to breach the Code. In 2001, The Portman Group complained about an advertisement, for a medicine called “Alka XS Go”, that claimed “go out, have a laugh be alright”. The ASA considered that the claim, coupled with the product name, irresponsibly encouraged consumers to drink excessively (Bayer plc, 1 May 2002).
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA.
CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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