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 marketing authorisation 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) for example, Botox, or Viagra, may not be advertised to the public, but may be advertised to the medical, dental, veterinary and allied professions (Rule 12.12). In traditional non-broadcast media, such as leaflets, press ads, brochures, posters and even on sponsored ads, the ASA views virtually any reference to a POM as promoting a POM, and therefore a breach of rule 12.12. Marketers who offer POMs such as Botox as well as other injected treatments may advertise using the term “cosmetic fillers” or “injected fillers” however, they may not name Botox directly or describe the treatment in any way that would imply Botox is being offered (for example, Beautytox or Beautox). Marketers must be careful to avoid an indirect promotion of the product. See Beauty and Cosmetics: Botulinum toxin products and Hyperhidrosis.
Promote the consultation not the product
There are some exceptions for websites, principally, those for clinics and pharmacies, offering consultations. For example, “a consultation for excessive sweating”. Such websites may provide information about a POM in the context of the product being a possible treatment option following a consultation.
The offering of a "consultation" in the first instance is paramount because the name of the POM should not be referenced in the initial ad and because it should be clear that the ad is promoting a consultation, and only if one is deemed suitable, one may or may not choose to buy the treatment (Lloyds Pharmacy Ltd, 4 March 2015).
No reference to a POM should be made on a sponsored ad link, a Home page of a website, logos, testimonials, hover text, and any small print at the bottom of a Home page should not refer to POMs or directly link consumers to a page where it is referred to. Price lists included on a website should not include product claims or encourage viewers to choose a POM based on the price. Marketers should ensure that the casually browsing consumer does not come across information relating POMs with ease.
Balanced and factual information
Where information about a POM is included on a website, the ASA considers that the information has to be balanced and factual and must be presented in the context of an ad for the service, i.e. the consultation. The ASA is likely to consider that any claims used should accord with the wording found on the patient information leaflets (PIL’s) or the information found in the Summary of Product Characteristics (SPC’s). There should be no promotion, whether direct or otherwise, of the POM or of the service as a means to obtain the POM.
Marketers should not include information in their ads that POMs can be used to treat areas other than those areas for which the product is licensed (Dermaskin Clinics, 15 January 2014).
A marketer may include a price list with a range of treatments available but the price list should not include product claims or actively encourage viewers to choose a product based on the price.
Health professionals and celebrities
While only suitably qualified health professionals should administer POMs, using health professionals to endorse the product breaches rule 12.18 of the CAP Code (“Marketers must not use health professionals or celebrities to endorse a POM”)
Before and after photos
Before and after photograph are likely to be understood as a claim for efficacy and therefore a promotional claim, which is not permitted.
As well as contacting the Copy Advice team, further information and advice is available from the MHRA Advertising Standards Unit at [email protected] Botox may be advertised directly to the medical, dental, veterinary and allied professions (Rule 12.12). See Before and after photos
Last updated 30/03/2015