Background
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA). On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025. Given that the complaint which formed the subject of this ruling was received before 7 April 2025, the ASA considered the ad and complaint under the wording of the rules that existed prior to 7 April 2025, and the Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A post on the health.detective Garstang Health Food Store’s TikTok account was seen on 27 December 2024. The video in the ad featured on-screen text that stated, “This is an impressive cough fix”. The man featured in the video and on-screen text stated, “Hands up who’s got a cough that just won’t go away? Well, here’s a little fix I hope might help you. And I’ve used this successfully with my four year old [sic] daughter who’s had a persistent cough for month after month after month that just won’t go away and we’ve done the things like checking for black mould, giving her all kinds of cough remedies, some of which do ease the symptoms, but this thing, this was amazing. We got an amazing air filter and put it in her bedroom and put it on and that very night she stopped coughing […] it starts to monitor the quality of your air […] delighted that my daughter now sleeps without that awful hacking cough and look here you can get 200 quid off it if you wanna try if for yourself or for your children […] and if you screenshot this QR code […] you’ll get 200 quid off one […] AmazingAir for those nasty nasty coughs”. Text at the bottom of the ad stated, “The AmazingAir filter really is amazing! #coughremedy #cough #airfilter #ionizer fixed my daughters cough the very night we started using it”.
Issue
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The complainant challenged whether the ad was obviously identifiable as a marketing communication and made clear its commercial intent; and
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whether the ad breached the Code because it made medical claims for an unlicensed product.
Response
AirDoctor LLC (AirDoctor) and health.detective Garstang Health Food Store Ltd (health.detective) did not respond to the ASA’s enquiries.
Assessment
The ASA was concerned by AirDoctor’s and health.detective’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in the future.
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such and that they made clear their commercial intent, if that is not obvious from the context.
The post featured a QR code that was an affiliate link and by following the link, consumers could purchase the AmazingAir filter. We understood that meant the health.detective account would receive a commission for any click-throughs to the product listing on the AmazingAir website. The post was therefore a marketing communication for the purposes of the Code.
We then assessed whether the ad was obviously identifiable as such. We noted that the post did not feature the label “#ad”, or any similar prominent identifier. In the absence of a clear and prominent label, we therefore concluded that the post was not obviously identifiable as a marketing communication and as such breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
2. Upheld
The CAP Code stated that medicinal or medical claims and indications may be made for a medicinal product that is licensed by the Medicines and Healthcare products Regulatory Agency, Veterinary Medicines Directorate or under the auspices of the European Medicines Agency, or for a CE-marked medical device and that objective claims must be backed by evidence, if relevant consisting of trials conducted on people.
We considered the claims, including “This is an impressive cough fix”, “I’ve used this successfully with my four year old [sic] daughter who’s had a persistent cough for month after month after month that just won’t go away”, “We got an amazing air filter and put it in her bedroom and put it on and that very night she stopped coughing”, “fixed my daughters [sic] cough the very night we started using it” and “delighted that my daughter now sleeps without that awful hacking cough”, were likely to be understood by consumers that the product could treat and prevent coughs. We therefore considered that the ad made medical claims, which required that the product met the requirements for medical devices. We had not seen evidence that the product was registered with the MHRA, nor had we seen evidence that the AmazingAir filter had the appropriate conformity marking. Therefore, no medical claims could be made for the product. Because the ad made such claims, we concluded that it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 12.1 (Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told health.detective Garstang Health Food Store Ltd and Air Doctor LLC to ensure that in future their ads were obviously identifiable as marketing communications. We further told them not to make medical claims for unlicensed products. We referred the matter to CAP’s Compliance team.
