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 CAP News Article explains the position further.
- Prescription-only medicines
Products that are either medicinal by function (the product contains one or more active medicinal ingredients) or medicinal by presentation (the product is presented as being able to treat or prevent disease or correct, restore or modify physiological functions) should not be advertised to the public unless the marketer holds a valid, licence, registration or marketing authorisation and the claims in the marketing communication conform to that licence/registration/authorisation.
Marketers should refer to the Medicines and Healthcare Products Regulatory Agency (MHRA) for advice.
Prescription-only medicines (POMs) are a specific class of medicine. A POM has to be prescribed by a doctor or other authorised health professional and it has to be dispensed from a pharmacy or from another specifically licensed place.
Prescription-only medicines (POMs) for example, Botox, or Viagra, must not be advertised to the public, but may be advertised to the medical, dental, veterinary and allied professions. In traditional non-broadcast media, such as leaflets, press ads, brochures, posters and even on sponsored ads, the Advertising Standards Authority (ASA) views virtually any reference to a POM as promoting a POM, and therefore a breach of rule 12.12. Marketers who offer POMs such as Botox alongside other injected treatments may advertise the treatments collectively using the term “cosmetic fillers” or “injected fillers” however, they may not name Botox directly or describe the treatment in any way that would imply Botox is being offered (for example, Beautytox or Beautox). Marketers must be careful to avoid an indirect promotion of the product. If marketers only offer Botox (or another POM) they should advertise the consultation, not the product (see below), See Beauty and Cosmetics: Botulinum toxin products.
- Promote the consultation not the product
Websites offering POMs principally, those for clinics and pharmacies, should primarily offer the consultation service rather than the POM itself. Websites, which offer POMs may provide information about those POMs but only in the context of the product being offered as a possible treatment option following that consultation. The offering of a “consultation” in the first instance is paramount because the POM should not be referenced (directly or indirectly) on the home page of a website or in logos, testimonials and hover text.
It is likely to be acceptable for the homepage to refer to the condition(s) to which the consultation and treatment options apply, For example “A consultation for lines and wrinkles” or “a consultation for erectile dysfunction” is likely to be acceptable. It is not likely to be acceptable to refer to the POM itself. For example, “A consultation for botox” is likely to be considered an ad for a POM, rather than the consultation, and therefore not acceptable.
Additionally, any small print at the bottom of a homepage should not refer to POMs or directly link consumers to a page where POMs are referred to. Price lists that reference POMs should not appear on the home page. Price lists should also not include any product claims or encourage website visitors to choose a POM based on the price (such as offering a price promotion). Marketers should ensure that the casually browsing consumer does not come across information relating POMs with ease.
- Balanced and factual information
Where information about a POM is included on the inner pages of the website, it should only be presented as the potential outcome of the consultation service. The ASA and CAP consider that the information about any POM should be balanced and factual and should accord with the wording found on the patient information leaflets (PILs) or the information found in the Summary of Product Characteristics (SPCs). There should be no promotion, whether direct or otherwise, of the POM or of the service as a means to obtain the POM.
Marketers should not include information in their ads that POMs can be used to treat conditions other than those areas for which the product is licensed (Dermaskin Clinics, 15 January 2014).
- Price lists
A marketer may include a price list (not on the homepage) with a range of treatments available but the price list should not include claims about the POM products or actively encourage viewers to choose a product based on the price (such as a discount price offer).
- Health professionals and celebrities
While only suitably qualified health professionals should administer POMs, using health professionals or celebrities to endorse any medicine breaches rule 12.18 of the CAP Code.
In 2012 the ASA ruled on an ad for Botox treatments which included quotations from a qualified dental surgeon whose credentials were also included. The ASA ruled not only that the ad promoted POMs to the public but that the medicine was also endorsed by a medical professional (Anesis Spa, 11 July 2012).
In 2019, the ASA ruled against a blogger who had teamed up with a brand to promote a medicine for temporary sleep problems. Whilst the ad was not for a POM the ASA considered whether the ad used a celebrity to endorse a medicine. In this case the ASA found that the beauty blogger had influence over her 30,000 followers and that for the purpose of the Code, she was a ‘celebrity’ because of that influence (Sanofi UK, 3 July 2019).
- Before and after photos
Before and after photograph are likely to be understood as a claim of efficacy and therefore a promotional claim, which is not permitted.
See: Beauty and Cosmetics: Botulinum toxin products, Weight control: Prescription-only medicines
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 Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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