Summary of Council decision:
Two issues were investigated, both were Upheld.
Three sponsored search ads for the website www.expresspharmacy.co.uk, an online pharmacy. Each ad included the claims "Lowest Price Guaranteed" and "free consultation and prescription". Two of the ads, (a) and (b), included the text "Buy Erection Pills Online":
a. the first ad also included the text "4x100mg from only £19.99";
b. the second ad also included the text "Generic Pills Available";
c. the third ad promoted hair loss pills.
1. The complainant challenged whether the claim "Lowest Price Guaranteed" in all three ads was misleading and could be substantiated, because he understood the products were available cheaper elsewhere.
2. The ASA challenged whether ads (a) and (b) promoted prescription-only medicines (POMs) to the public.
1. Express Pharmacy said the purpose of their 'lowest price' guarantee was to offer a price promise. They said should a regular customer find a particular product cheaper elsewhere, they would guarantee to match and beat that particular price. They said they recognised the distinction between offering a "lowest price guarantee" and claiming "lowest prices guaranteed" and had therefore amended their advertising accordingly. They said their prices reflected the final price that would be charged at the billing stage, exclusive of postage costs, whereas their competitors charged a consultation fee, which in many cases, including the current one, made them more expensive.
2. Express Pharmacy said they had followed the Medicines and Healthcare products Regulatory Agency's (MHRA) guidance on advertising prescription medication online, which they understood prevented them from naming the POM in advertising. They said the guidance stated that ads may promote the service provided, but should not mention specific POMs. Express Pharmacy pointed out that the ads did not refer to Viagra, rather the text was intended to promote the entire service they offered in relation to erectile dysfunction. The text "Buy Erection Pills Online" referred to the entire range of erectile dysfunction treatments they offered on their website and when the ads were clicked on, consumers were directed to the erectile dysfunction treatment page, which made no mention of prescription medication.
They believed "Erection Pills" would not be understood as a direct reference to Viagra, because there were various prescribed treatments for erectile dysfunction available in pill format. The text referred only to the implied problem and their focus was on promoting the consultation on their website. By offering a range of treatments via consultation, they allowed patients to make an informed decision. Express Pharmacy said they did not refer to POMs in the ads and at no point did they promote a particular product. The ads were intended to promote a specific service related to erection pills, which could be purchased following a consultation via their website.
The ASA acknowledged Express Pharmacy had amended their advertising. However, we noted the ads stated "Lowest Price Guaranteed", which we considered was likely to be interpreted as being a lowest price claim, rather than as relating only to a price promise. We noted that if marketers claimed that lowest prices were guaranteed, they should use a price monitoring and adjustment policy to ensure the claims could be supported. We considered a price promise did not justify a lowest price claim in the absence of an adequate monitoring and adjustment policy and noted advertisers should be in a position to substantiate lowest price claims. We noted we had not seen any evidence that Express Pharmacy ensured they always had the lowest prices and therefore concluded that the ads breached the Code.
On this point, the ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
We noted Express Pharmacy understood that it was acceptable to advertise a POM to the public if the product was not named. However, we understood that was not the case and noted the ads referred to "Erection Pills", which we considered would be understood by consumers as a reference to POMs used to treat erectile dysfunction. We acknowledged that the ads stated "free consultation", and therefore made clear that a consultation was available, and that they did not name any specific POM. We also noted, however, that both ads referred to "free … prescription" and that ad (b) stated "Generic Pills Available", which we understood to contain the same active ingredients as the original formulation and therefore to also be POMs. We understood that Express Pharmacy sold only POMs. In addition, ad (a) stated "4x100mg from only £19.99", which we considered was also clearly a reference to the available POMs themselves.
We considered the text "Erection Pills" constituted a description of POM treatments, which, particularly in the context of the references to "free … prescription" in both ads, and the text "4x100mg from only £19.99" in ad (a) and "Generic Pills Available" in ad (b), went beyond balanced and factual references to the POM as a treatment option, presented in the context of the promotion of a consultation where a range of therapeutic options would be discussed. We considered that it was acceptable for advertising to refer to the POM as a treatment option, presented in the context of the promotion of a consultation where a range of therapeutic options would be discussed, provided the focus was on the promotion of the consultation rather than any associated POM. Because it promoted the use of a POM to the public, we concluded that the ad breached the Code.
On this point, ads (a) and (b) breached CAP Code (Edition 12) rule 12.12 12.12 Prescription-only medicines or prescription-only medical treatments may not be advertised to the public. (Medicines, medical devices, health and beauty products).
The ad must not appear again in its current form. We told Express Pharmacy not to state or imply in future that they offered guaranteed lowest prices, unless they were in a position to substantiate those claims. We also told them to ensure they did not promote POMs to the public in future.