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.
The CAP Code states that medicines must have a licence from the MHRA before they are marketed. Marketing communications for medicines must conform with the licence and the product’s summary of product characteristics.
Do you need a licence from the MHRA?
The ASA upheld a complaint about an ad which stated that “Sensodyne has always been my first mode of treatment for sensitivity” and “Dentists recommend Sensodyne for sensitive teeth” (GlaxoSmithKline UK Ltd, 14 March 2007). The MHRA advised that both claims were medicinal because they referred to the treatment of tooth sensitivity. Some of the products shown in the ads did not hold a Marketing Authorisation and so, the claims were found to breach the Code. The Copy Advice team advises that marketers avoid using the claims “Sensitivity” and “Sensitive Teeth” in marketing communications for products without a marketing authorisation to treat those conditions. Marketers should check with the MHRA if they are in any doubt about whether their claims are medicinal.
Marketers promoting toothpastes which are cosmetic, not medicinal, should contact the MHRA in the first instance, as to the types of claims they can make.
Health professional and celebrities
Rule 12.18 states that marketers must not use health professionals or celebrities to endorse medicines. Dentists can be used to endorse cosmetic products but should not be used in ads for toothpastes that are medicinal by either function or presentation. In the past, the ASA has ruled that an advertiser breached Rule 12.18, because the MHRA considered that a claim to treat sensitive teeth was a medicinal one.
Protection of sensitive teeth
One marketer who provided the ASA with clinical studies to show the efficacy of fluoride toothpaste in strengthening tooth enamel was able to legitimately claim that the product could protect “sensitive teeth”. The ASA also considered that the claim “So if you want to protect your sensitive teeth and help protect against acid erosion, start using new Colgate Sensitive Enamel Protect” in the context of the ad, was likely to be seen to be a general comment on the types of products that people with sensitive teeth might avoid, as opposed to implying a treatment for sensitive teeth, and therefore making a medicinal claim (Colgate-Palmolive (UK) Ltd, 11 March 2009).
GlaxoSmithKline were able to show that their product reduced tooth sensitivity after topical application for 60 seconds in relation to the claim, “Sensodyne Rapid Relief ... formulated to provide rapid and long lasting relief from the pain of sensitivity ... Works in 60 seconds” the ASA considered that it did not make clear that individual results could vary. In the absence of this clarification, it was considered that the ad implied the same level of efficacy for all consumers, which would not have been the case. However, the complaint relating to the TV ad for this campaign was not upheld, because it included text which stated “Individual results may vary” (GlaxoSmithKline plc, 18 April 2012).
From the comparative evidence received by the ASA regarding an ad which stated “Switch to the most effective sensitive toothpaste” the ASA noted that the product performed better than traditional potassium-based sensitive toothpastes. However the claims were absolute and implied that the product had been tested against all other sensitive toothpastes on the UK market, which was not the case (Colgate-Palmolive (UK), Ltd, 14 December 2011). See our guidance on Comparisons: Gerneral.