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.
Products that are either medicinal by function (the product contains one or more active medicinal ingredients) or medicinal by presentation (the product is presented as being able to treat or prevent disease or correct, restore or modify physiological functions) should not be advertised to the public unless the marketer holds a valid licence, marketing authorisation or registration and the claims in the marketing communication conform to the authorisation (Rule 12.11). Marketers should refer to the Medicines and Healthcare Products Regulatory Agency (MHRA) for advice.
Prescription-only medicines (POMs) are a specific class of medicine. A POM has to be prescribed by a doctor or other authorised health professional and it has to be dispensed from a pharmacy or from another specifically licensed place.
Don’t advertise POMs to the public
Prescription-only medicines (POMs) cannot be advertised to the public (rule 12.12)
In traditional non-broadcast media, such as leaflets, press ads, brochures, posters and even on sponsored ads, the ASA considers almost every reference to a POM to be a promotion of a POM and therefore a clear breach of rule 12.12. The rule also applies to posts on advertiser’s own social media pages.
In 2021 the ASA ruled on a paid for Google ad which included a price offer on erectile dysfunction treatments, including references to “tablets”. Whilst the service offered both POM and non-POM treatments, in the absence of any information stating that the 10% off promotion applied exclusively to non-POMs, the ASA ruled that the ad promoted POMs to the public (Pharmica, 3 November 2021).
Similarly, the ASA ruled on another Google ad offering a discount on erectile dysfunction tablets. In that case the marketer only offered prescription-only medicines and as such, the ASA ruled that the promoted a POM (Vir Health, 3 November 2021).
CAP and the ASA has seen a rise in the number of posts on social media for Botox products. Marketers should be aware that any reference to Botox on their social media pages, including hashtags, is likely to be seen as an implied ad for a POM (Beauty Boutique Aesthetics, 25 September 2019, Skinny Jab Ltd, 7 October 2020).
Promote the “consultation” itself, rather than the product
Whilst reference to POMs and POM treatments are prohibited, a reference to a consultation on the area of treatment is likely to be acceptable provided that reference is representative of the licence for that POM. For example, the claim “a consultation for the treatment of lines and wrinkles” (for POM injectables like Botox) or “a consultation for the treatment of erectile dysfunction” (for POM Ed treatments like Viagra), is likely to be considered acceptable in ads, provided the POM itself is not referred to (directly or indirectly).
Don’t feature health professional or celebrities
While only suitably qualified health professionals should administer POMs, using health professionals or celebrities to endorse any medicine breaches rule 12.18 of the CAP Code.
In 2012 the ASA ruled on an ad for Botox treatments which included quotations from a qualified dental surgeon whose credentials were also included. The ASA ruled not only that the ad promoted POMs to the public but that the medicine was also endorsed by a medical professional (Anesis Spa, 11 July 2012).
In 2019, the ASA ruled against a blogger who had teamed up with a brand to promote a medicine for temporary sleep problems. Whilst the ad was not for a POM the ASA considered whether the ad used a celebrity to endorse a medicine. In this case the ASA found that the beauty blogger had influence over her 30,000 followers and that for the purpose of the Code, she was a ‘celebrity’ because of that influence (Sanofi UK, 3 July 2019).
Don’t use before and after photographs
The use of before and after photographs is likely to be interpreted by the ASA as an advertising claim, which is not permitted for POMs (Rule 12.12). Marketers of POMs should, therefore, avoid featuring any before and after images in their marketing communications. If the marketer also promotes non-POM treatments alongside their POM counterparts, the use of before and after images may be acceptable if they are clearly attributed to the non-POM product.
There are a few exceptions to the above in relation to websites for online pharmacies and clinics where a POM may be prescribed following a consultation. This is explained in CAP Advice on Prescription-only-medicines – websites.