Ad description
A TV ad, for a spot treatment, stated “The only spot treatment with an anti-inflammatory, which helps stops your angry spots. It’s unique. Nothing else works like this. Nothing fights spots like Freederm Gel”.
Issue
SkinMed Ltd, who said their Aknicare product contained four anti-inflammatories, challenged whether the claim “The only spot treatment with an anti-inflammatory” was misleading.
Response
Diomed Developments Ltd (Diomed Developments) said it was acknowledged, in the approved Summary of Product Characteristics, that Freederm Gel's effectiveness in treating acne was attributed to the significant anti-inflammatory activity of the product's active ingredient, nicotinamide. They said the complainant, Skinmed Ltd, cited four anti-inflammatory ingredients in their Aknicare product but believed that these ingredients were neither commonly known nor officially recognised as anti-inflammatory ingredients.
They said the product labelling for the complainants' Aknicare product showed it was marketed under a medical device registration and that, to comply with the legal requirements of the Medical Devices Directive, the product could not rely, for its effectiveness, on pharmacological action. They said, were Aknicare to contain known anti-inflammatory ingredients, which exhibited anti-inflammatory action to achieve the product's effectiveness, it would have to be formally licensed, like Freederm, by the Medicines and Healthcare products Regulatory Agency (MHRA). They did not believe Aknicare contained any recognised anti-inflammatory ingredients and said, even if it did rely on pharmacological action, it would not be legal to be marketed as a medical device. They submitted a series of Final Determinations, made in accordance with the MHRA, and believed this demonstrated that anti-inflammatories were medicines and not medical devices.
Clearcast said the claim dated back to November 2007 and was approved in March 2011 based on new evidence dated November 2010. They said the ingredients in Aknicare were not scientifically proven, nor were they formally recognised as having anti-inflammatory actions, whereas the active ingredient nicotinamide in Freederm, , was. They said using Aknicare could lead to reduced inflammation but this was achieved by non-pharmacological means. They said because Akincare was a medical device, rather than a formally licensed medicine, Skinmed were unable to make anti-inflammatory claims in their marketing. They said it was therefore inappropriate to compare Aknicare with a licensed medicine that reduced inflammation through pharmacological action. They submitted a statement signed by the Head of Regulatory Affairs at Diomed Developments to support the claim that Freederm Treatment Gel and Freederm Gel were the only licensed treatments with an anti inflammatory ingredient.
Assessment
Not upheld
The ASA noted SkinMed Ltd said Aknicare contained four anti-inflammatories: Triethyl citrate, Ascorbyl Palmitate, MSM (Methylsulfonylmethane) and Octadecanoic acid. However we understood those ingredients were not commonly known to have anti-inflammatory effects. We also noted Aknicare was a not a licensed medicine, whereas Freederm Gel was. We noted Freederm Gel contained nicotinamide, an ingredient recognised by the MHRA as an anti-inflammatory. We understood SkinMed believed their product had anti-inflammatory ingredients. However, we considered that, because Aknicare did not come under the category of formally licensed medicines, it was reasonable for Diomed Developments to exclude the complainants' product from the comparison. We therefore concluded that the claim “The only spot treatment with an anti-inflammatory ...”, particularly in the context of the text "Nothing works like this", was not misleading.
We investigated the ad under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.38 3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage. (Comparisons) but did not find it in breach.
Action
No further action necessary.
