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.

Prescription-only medicines

Don’t advertise POMS to the public

Promote the “consultation” itself, rather than the product

Don’t claim customers can achieve a specific rate or amount of weight loss

Don’t refer to an excessively fast rate of weight loss in individuals.

Don’t feature health professional or celebrities

Don’t use irresponsible claims or imagery

Don’t use before and after photographs

Prescription only medicines

Medicines should not be advertised to the public unless the marketer holds a valid licence, marketing authorisation or registration and the claims in the ad should 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.

Treatments for weight control include Liraglutide and Semaglutide, which are marketed in the form of self-administered injectable “pen” devices (brand names include Saxenda, Victoza and Ozempic) and in orally administered versions (brand names include Rybelsus). The medicines are also presented as “skinny pens”, “skinny jabs”, “skinny tabs” and “skinny pills”, referring to their method of administration.

Following an influx of complaints about ads for POM treatments for weight-loss in 2020, CAP issued an enforcement notice against marketers advertising the medicine to the public.

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.

There is a small exemption to the inner pages of a clinic or pharmacy’s own website (but not the homepage) which is explained in more detail in CAP Advice on Prescription only medicines (websites).  Rate of weight loss claims are only acceptable in these inner pages of websites if in line with the remaining advice in this article.

Promote the “consultation” itself, rather than the product

Whilst references to POMs and POM treatments are prohibited, a reference to a consultation on the type of treatment being offered is likely to be acceptable provided that reference is representative of the licence for that POM.  For example, the claim “a consultation for weight lossis likely to be considered acceptable in ads, provided the POM itself is not referred to (directly or indirectly such as through images of an injection or the use of the colloquial name of the POM). Care would also need to be avoided in suggesting treatment is for individuals who are not normally overweight unless it conforms with the licence that accompanies the product.

Don’t claim customers can achieve a specific rate of weight loss

Rule 13.9 states that ads must not contain claims that people can lose precise amounts of weight within a stated period or, that weight or fat can be lost from specific parts of the body.

The ASA ruled against ad an which included the claim “LOSE OVER A FULL STONE IN JUST 2-4 WEEKS”  because it referred to an amount of weight within a specific period (Skinny Revolution Ltd, 7 October 2020).

A claim that specific individual has lost an amount of weight is likely to be acceptable subject to expectations set out in rule 13.10

Don’t refer to an excessively fast rate of weight loss in individuals.

Rule 13.10 allows for claims about a featured individual’s weight loss provided the time frame during which the weight was lost is stated and provided the example is representative of the weight loss achieved by using the product.  A rate of weight loss for individual examples will also need to be in line with good nutritional practice. For those who are normally overweight, a rate of weight loss greater than 2 lbs (just under 1 kg) a week is unlikely to be compatible with good medical and nutritional practice. For those who are obese, a rate of weight loss greater than 2 lbs a week in the early stages of dieting could be compatible with good medical and nutritional practice.

In 2020 the ASA ruled against ads on a marketer’s own social media site which featured references to the use of POMs to aid weight loss (a breach of rule 12.12). The ad featured references to the specific amount of weight loss achieved by Kerry Katona and referred to a rate of weight loss of 3.5 pounds a week, which was not considered to be compatible with good nutritional practice (Skinny Revolution Ltd, 7 October 2020).

Don’t feature health professionals 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 2020 the ASA upheld complaints about social media ads for a prescription-only weight control product posted by ‘celebrity’ and social-media influencer Gemma Collins.   The social media posts made direct and indirect references to a prescription-only weight loss product which the ASA considered to be a prohibited endorsement of a medicine by a celebrity (Skinny Jab Ltd, 7 October 2020).

Don’t use irresponsible claims or imagery

Marketers should be mindful that criticism or negative images of weight gain could be seen to be socially irresponsible, especially for young women who are already body conscious because of pre-existing societal pressures (regardless of their actual weight or size, and including those who were of a healthy weight).

Additionally, marketers should also avoid suggesting that weight loss treatments could be used by individuals who are not normally over-weight.  Such content may be considered to be socially irresponsible and may also be considered problematic if the medicine in question is only licensed to treat individuals who are obese or overweight.

In 2020, the ASA considered ads for a POM which featured a “before” image of a slim Barbie doll and an “after” image of an overweight Barbie doll, together with the claims “Me in Quarantine” and “Don’t let lockdown knock you back”. The ASA ruled that the ad was irresponsible because it poked fun at women’s physicality and played on those anxieties and that this was exacerbated due to the “lockdown” references (from the COVID-19 pandemic) which affected access to normal diet and exercise routines (Skinny Revolution Ltd, 7 October 2020).

Also in 2020, the ASA considered social media ads for POM treatment for weight-loss which featured an already slim model alongside the claims including “I’m gonna be coming out of lockdown half the size!!” and “Forgot to eat again”. Alongside the irresponsible references to forgetting to eat, the ASA ruled that that the message that people who were not overweight would benefit from weight loss treatment was also considered irresponsible (Skinny Clinic, 7 October 2020).

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.  The before and after photographs for non-POM products are also subject to the rules on Weight control and slimming and social responsibility.

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