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.
BREXIT - The CAP and 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.
Medicinal or medical claims can only be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA (Rule 12.1). Prescription-only medicines may not be advertised to the public (Rule 12.12). Additionally, medical professionals and celebrities should not be used in ads to endorse medicines (12.18).
Be careful with your casting
Endorsements by health professionals and celebrities could be viewed by the public and the ASA as giving undue appeal to one product over another or as an exploitation of the credulity of the audience.
In 2012 the ASA upheld a complaint about an ad promoting spa treatments which stated "Facial Rejuvenation Clinic - Botox Treatments". Further text stated "Available now at our Clapham Branch in London. Dr. Natalia (Natty) Burgess BDS is a qualified Dental Surgeon…Natty is specially qualified in facial injection rejuvenation treatments and loves seeing the renewed confidence that people gain from the results”. The ASA considered the overall impression of the ad was such that it was likely to be interpreted as suggesting a qualified dental professional endorsed treatment using the POM and concluded the ad breached the Code (Anesis Spa, 11 July 2012).
Marketers should be careful when using health professionals to advertise products, especially if that endorsement is not product-specific. Although health professionals may be associated with cosmetic products, marketers should not imply that health professionals endorse a range of products if some of the products in that range are medicines (Colgate Palmolive (UK) Ltd, 17 January 2007, and GlaxoSmithKline UK Ltd, 14 March 2007).
Marketers should also avoid using “celebrities” to endorse medicines. In July 2019, the ASA upheld a complaint in relation to post by a blogger on their Instagram account about an over-the-counter (OTC) medicine which was licensed for the treatment of short-term insomnia in adults. The advertising post referred to the bloggers positive experience of using the product, which the ASA considered was an endorsement of that medicine. The ASA noted the blogger regularly produced content across different social media platforms relating to her experiences as a parent and that her Instagram feed featured over 1000 posts that included recommendations on products. Because this blogger regularly posted recommendations about products and was popular with, and had the attention of a significant audience (over 30,000 followers at the time of the post), the ASA considered she was a “celebrity” for the purpose of rule 12.18 and that as such, this endorsement breached the Code (Sanofi UK, 3 July 2019).
CAP understands that there are not a minimum or maximum number of followers that creates a threshold at which an influencer is, or is not, a ‘celebrity’ for the purposes of this Code Rule and that the numbers of followers forms only part of the consideration of the reach of that influencer in a particular market.
Don’t exaggerate an individual’s involvement
Some marketers are tempted to add credibility to their product simply by stating or implying that it was discovered by, developed in conjunction with or endorsed by health professionals. Although many respectable marketers have nutritionists or dermatologists as part of their research and product development team, marketers should be careful not to over-claim and imply endorsement by health professionals or the medical fraternity generally.
See ‘Official Endorsements’.