Ad description
A poster for Boots, seen in a London Underground train between November 2017 and December 2018, promoted their “Dual Defence” product. White and yellow text at the top of the poster stated “Use at 1st signs to help”. Larger blue font text in the middle of the poster, highlighted in a yellow shield, stated “STOP COLD + FLU like symptoms”. Smaller white text at the bottom of the poster stated “Helps shorten the duration and severity of COLD & FLU LIKE SYMPTOMS”. The ad also featured an image of people wearing space suits and a woman blowing her nose.
Issue
Five complainants, who believed the ad implied that the product could prevent or treat cold and flu infections, challenged whether the ad was misleading.
Response
Boots said that the ad made clear that if the product was used at first signs, it could help stop cold- and flu-like symptoms. They said that consumers would understand that in order to stop or shorten the symptoms of a cold or flu, the virus must have already begun. They argued that consumers would not interpret the ad to mean that the product could prevent colds and flus.
Boots said that the claims in the ad had been assessed by the notified body, the relevant competent authorities and their Primary Authority, Nottinghamshire Trading Standards. They said that their evidence showed that when used at the initial onset of symptoms, the product could help to shorten both the duration and severity of cold- and flu-like symptoms.
Boots provided a copy of advice they had received from their Primary Authority. The advice stated that Nottinghamshire Trading Standards had conducted a review of the all the relevant evidence, certifications and the previous ruling on the product. Their conclusion was that all the claims in the ad had been substantiated and would not mislead consumers. They said that while they had not seen a copy of the ad when issuing the advice, they believed that the ad was compliant.
Assessment
Not upheld
The ASA had previously assessed evidence submitted by Boots in relation to the same product and concluded that that the product was capable of reducing the duration and severity of cold- and flu-like symptoms but was not clinically proven to prevent the symptoms of colds and flus.
The ad featured the headline claim “Use at 1st signs to help STOP COLD + FLU like symptoms”. While we acknowledged that the second part of the claim was presented in larger text and was highlighted with a yellow shield, we considered that the first part of the sentence was still sufficiently prominent to contextualise the second part. In addition we noted that text immediately below stated, “Helps shorten the duration and severity of COLD AND FLU LIKE SYMPTOMS”, which we considered clearly explained that the function of the product was not for prevention of colds and flu but for the treatment of symptoms after their onset.
Because we considered that consumers would understand from the ad that the product could only shorten the duration and severity of cold- and flu-like symptoms rather than prevent the infection or the symptoms before they started, we concluded that the ad was not misleading.
We investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising), 3. 7 (Substantiation) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
and
12.11
12.11
Medicines must have a licence from the MHRA, VMD or under the auspices of the EMA before they are marketed. Marketing communications for medicines must conform with the licence and the product's summary of product characteristics. For the avoidance of doubt, by conforming with the product's indicated use, a marketing communication would not breach rule 12.2.
Marketing communications must not suggest that a product is "special" or "different" because it has been granted a licence by the MHRA, VMD or under the auspices of the EMA.
(Medicines, medical devices, health-related products and beauty products)
Action
No further action necessary.
