ASA Adjudication on Advanced Formulations (Europe) Ltd

Ad

A poster in motorway service station washrooms, for a handwash gel, stated "KILLS 99.8% OF GERMS. NO GERMS. INSTANT HAND SANITISER." The ad also featured two quotes from the Daily Mail that stated "£2.99 HANDWASH KILLS MRSA and BIRD FLU' and "On average, people touch their faces every five minutes." A further quote by Dr Charles Gerba of the University of Arizona stated "80% of disease causing illness is spread by Hand."

Issue

dR Cosmetic Regulations challenged:

1. the claim "Kills MRSA and bird flu", because they believed it was a medicinal claim for an unauthorised product and

2. whether the poster made an undue appeal to fear, because they believed MRSA bacteria was not harmful to the general population and the H5N1 (Bird flu) virus was not a current health risk in the UK.

CAP Code (Edition 11)

Response

1. Advanced Formulations (Europe) Ltd (Advanced Formulations) said they understood that the presence of MRSA or H5N1 on the skin would be classified as a disease.  They told us that they had undertaken serious testing of the product and sent us several studies, a safety certificate and details of a hospital trial that they believed proved the efficacy of the product.  Advanced Formulations explained that they had intended the poster to show that the product might help prevent the spread of disease by killing bacteria on the skin.  

2. Advanced Formulations told us the ad was only used when they advertised the product through sampling promotions and, in those instances, promotions staff were always on hand to explain the claims.  They said they were unaware of any promotional material remaining where they had carried out promotions and asserted that they had not put up the poster in the washroom.  

Advanced Formulations said they understood that, once MRSA entered the bloodstream, it could be fatal; they believed that 4,000 people died in hospitals in Britain each year from the disease.  They argued that encouraging visitors, who might have open wounds, to wash their hands to avoid the spread of disease was not scaremongering.  

Advanced Formulations said, according to the media, H5N1 was present in Britain.  They suggested that the Government's order of large quantities of bird flu anti-virus was proof that the threat was real.  Advanced Formulations reiterated that they did not use shocking claims or images and therefore disagreed that their ad amounted to scaremongering.  

Advanced Formulations said they intended to use the poster in future but at promotional events only and had no plans to advertise the product in any other media.

Assessment

1. Upheld

The ASA noted Advanced Formulations comments and supporting evidence.  We noted the claim "Kills MRSA and Bird Flu" was a quote extracted from a Daily Mail article.  We nevertheless understood from the Medicines and Healthcare products Regulatory Authority (MHRA) that references to the pathogens MRSA and Bird Flu were unacceptable in ads for antibacterial gel designed for topical administration to humans.  We understood that, because the claim "Kills MRSA and Bird Flu" suggested that the product could be used to treat or prevent infections caused by those pathogens, it was an unauthorised medicinal claim.

On this point, the poster breached CAP Code clauses 4.1 (Legality) and 50.11 (Health and beauty).

2. Not upheld

We noted concerns about MRSA and Bird Flu had received widespread news coverage and considered that the poster raised issues with which consumers were likely to be familiar.  We considered that, in the context of a familiar public debate, the presentation and tone of the ad were not unduly alarmist and concluded that the poster was unlikely to shock or cause undue fear and distress to those who saw it.

On this point, we investigated the poster under CAP Code clause 9.1 (Fear and distress) but did not find it in breach.

Action

The ad should not appear again in its current form.  We told Advanced Formulations to contact the CAP Copy Advice team for help with future ads.

Adjudication of the ASA Council (Non-broadcast)