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 Advertising Standards Authority.
In 2020 the Medicines and Healthcare products Regulatory Agency (MHRA) issued this guidance regarding the regulatory status of equipment being used to help prevent the spread of coronavirus (COVID-19).
Hand sanitisers and hand washes
At the end of 2006, the ASA upheld a complaint about an ad, for a handwash gel, that stated "KILLS 99.8% OF GERMS. NO GERMS. INSTANT HAND SANITISER." The ad 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." The ASA ruled against the claim "Kills MRSA and Bird Flu": because it suggested that the product could be used to treat or prevent infections caused by MRSA or Bird Flu pathogens (which the advertiser could not evidence) and also was considered an unauthorised medicinal claim
In reaching its decision, the ASA took advice from the Borderline Section at the Medicines and Healthcare Products Regulatory Agency (MHRA). Guidance from the MHRA stated that any direct claim or implication that a product can be used to treat or prevent an infection associated with specifically named pathogens would be considered medicinal. This particularly applies to micro-organisms, such as MRSA, E-coli and Salmonella, that are frequently brought to the attention of the general public by the media. Claims such as “Kills MRSA” or “Effective against MRSA” are likely to be considered medicinal claims to prevent or treat infections that are caused by the MRSA micro-organism and are therefore unacceptable under law and the CAP Code.
Claims to prevent or treat COVID-19 using a topical products like hand sanitiser may also be considered medicinal and marketers wishing to make claims in advertising for unlicensed products should check with the MHRA before doing so.
General antibacterial or antimicrobial claims (that do not included references to a named pathogen) may be acceptable subject to the Biocidal Products Regulation administered by the Health and Safety Executive (HSE). Marketers who intend to make general antibacterial or antimicrobial claims are advised to review the HSE guidance on this point.
Surgical masks, medical facemasks and respirators
Marketers should be aware that depending on the nature of the face-mask, such products may be regulated as either Class 1 Medical Devices or Personal Protective Equipment (PPE). Marketers should ensure products meet product specifications under the relevant regulations (including any relevant certification and marketing authorisations) before making any advertising claims about the nature of protection provided by the product. Marketers who are unsure which regulatory regime their product falls under should view this guidance - which was issued by the MHRA during the COVID-19 health crisis.
In early 2020, when COVID-19/Coronavirus was beginning to spread more widely in the UK, the ASA ruled against two online consumer ads for face masks. In those rulings the ASA considered the then current position of Public Health England (PHE) - which did not recommend the use of any facemasks by the public as a means of personal protection against the virus and ruled that the ads broke the rules.
Fabric masks and face coverings.
In May 2020, during the Coronavirus pandemic, Public Health England (PHE) updated its position to also include advice on fabric masks and home-made facial coverings (as opposed to surgical face masks/respirators or PPE which are intended for use in clinical settings/the workplace) and their use in specific circumstances. The advice indicated that whilst PHE maintained that this type of facial covering offered a minimal protective benefit to the wearer, it could potentially prevent an infectious but asymptomatic wearer from spreading the disease, in some circumstances.
The ASA has yet to rule on ads for facial coverings following this updated and rather nuanced guidance. CAP considers that it is potentially acceptable to directly replicate or mirror the updated PHE guidance in ads for facial coverings. However, marketers should take care not to state or imply that their product offers any protection to the public and should avoid claims that go beyond the wording or spirit of the PHE position.