Ad description
A TV ad for pain®gone seen on 5 June 2016. The ad featured a presenter who stated, “Have you heard about pain®gone? It’s a safe and simple device that’s already used by over one million people worldwide.” On-screen text stated “pain®gone is a registered trademark. The name doesn’t imply efficacy and the device hasn’t been clinically proven to relieve pain”. The presenter then stated, “So how do you use pain®gone? You just hold it in position and just click the button 30 to 40 times.” The ad showed the presenter who placed the end of the product on his arm, over his shirt. He then clicked the product and the ad showed green circles that radiated out from the point of the product. He then stated, “It can even be used over clothing. pain®gone creates a controlled and targeted amount of piezo electricity, delivering a small charge straight to the point you wish to use it. But don’t just take my word for it.” The ad then featured consumer testimonials one of which featured a man who said, “I’ve been using pain®gone on my knuckles. Very, very easy to use, just click away, 30, 40 clicks.” The presenter then stated, “Ask your local pharmacist to try pain®gone today and find out why over one million people are using it.” On-screen text also featured the brand name of a recognisable high street pharmacy chain for the majority of the ad.
Issue
One complainant challenged whether the ad misleadingly implied that the device could relieve pain.
Response
Medi-Direct International Ltd said they did not believe that the ad made claims about the product’s efficacy and because the product name was a registered trademark, they had displayed an on-screen disclaimer.
Clearcast said at no point in the ad did the voice-over or on-screen text state what the product’s intended purpose was, or that it relieved pain. They said they had ensured the ad was ‘stripped back’ so that efficacy claims were removed in the voice-over, on-screen text and in the testimonials. They had also ensured that the visuals of medication in the background were unidentifiable in post-production. On that basis, they said that the only suggestion of pain relief in the ad was the product name and because it was a registered trademark an exception could be made, provided it was clear that on-screen text did not imply efficacy.
Assessment
Upheld
The ASA noted that the ad featured a presenter who demonstrated how pain®gone worked, which included a graphic of green circles radiating from the point of application; a technique commonly used in advertising for pain relief products to indicate the site of pain. The ad also included consumers discussing how they had used the product on specific parts of their body and how they would recommend it to others. We considered that the product name along with the radiating circles and consumer testimonials were likely to be interpreted by consumers to mean that the product could alleviate pain. Furthermore, we considered that, although the background of the ad was blurred, the neat, clinical appearance of products on the shelves and the various boxes and bottles shown were reminiscent of pain relief and personal care products, and that created the impression that the ad was set in a pharmacy. That impression was further reinforced by the on-screen presence of a recognised high-street pharmacy brand name, displayed for the majority of the ad, and the statement made by the presenter “Ask your local pharmacist to try pain®gone today”. We therefore considered that those aspects of the ad further enhanced the impression that pain®gone could alleviate pain.
We noted Medi-Direct’s assertion that the presenter and consumer testimonials had not made any explicit claims about pain®gone’s efficacy and that the on-screen disclaimer stated “pain®gone is a registered trademark. The name doesn’t imply efficacy and the device hasn’t been clinically proven to relieve pain”. We noted, however, that the on-screen text appeared only at the beginning of the ad and the product name – pain®gone – appeared on-screen and in a point-of-sale display in the pharmacy background throughout most of the ad with more prominence than that on-screen text. We did not consider that the disclaimer was sufficiently prominent to counter the overall impression created by the product name, pharmacy setting, product demonstration and testimonials, that the product could be used as a pain relief device.
Because we considered that viewers would understand from the ad that pain®gone was effective at relieving pain, when that was not the case, we concluded that the ad was misleading.
The ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
(Misleading advertising) and
11.4
11.4
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, the VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, treatments and health).
Action
The ad must not be broadcast again in its current form. We told Medi-Direct International Ltd not to claim or imply that their product could relieve pain, if that was not the case.
