An ad seen in The Sun on 19 June 2020 was headed “Reusable & Washable Protective Face Masks – keeps on working wash after wash!”. Further text stated “Protection against bacteria and viruses!”. The ad included the sub-heading “Reusable Copper-Infused Face Mask”, under which text stated “2x Protective Layers” and “PLUS: INFUSED WITH COPPER FIBRE”.
In a description of the product, text stated “Protection plus – the mask that kills bacteria/viruses on contact. Attack is the best defence – and that’s what this face mask proves. It doesn’t just provide a passive barrier against bacteria, viruses, pollen, pollutants, dust particles etc – it takes positive action, destroying germs on contact. The secret is pure copper fibres infused in the polyester/spandex fabric. New research from the University of Southampton shows that copper can help prevent the spread of respiratory viruses. And unlike chemical compounds, copper doesn’t degrade when the mask gets wet – it just keeps on working wash after wash. Ergonomically designed to fit the face, they’re double-layered, comfortable, washable and reusable. Fitted with stretch ear loops (so one size fits all), they’re supplied in packs of three, in black”.
IssueThree complainants challenged whether the stated and implied claims that the advertiser’s “Reusable Copper-Infused Face Mask” would protect the wearer from infection with the COVID-19 virus, were misleading and could be substantiated.
ResponseEasylife Group Ltd said that they had amended the ad since it was published. They did not provide a substantive response to the complaint.
The ASA was concerned by Easylife’s lack of substantive 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 substantive response to our enquiries and told them to do so in future.
At the time of publication of this ruling, the various Governments of the UK had, in response to the COVID-19 pandemic, introduced laws making the wearing of face coverings mandatory in certain places. We understood that this requirement was based on scientific evidence that suggested that a face covering could help reduce transmission of infected airborne droplets from the person wearing it to those around them, thus helping to reduce the transmission of the virus in the community. However, we also understood that the evidence did not currently show that such coverings conferred a protective benefit on the wearer. For example, advice from Public Health England stated “The evidence suggests that wearing face covering does not protect you, but may protect others if you are infected but have not developed symptoms”. While we therefore considered that the widespread availability and responsible advertising of face coverings was desirable in general terms, we also considered that it was important that marketers of face coverings and masks should not mislead consumers about the capabilities of their products, for example by giving the impression they would protect the wearer when there was little evidence that this was the case.
We considered that, where marketers wished to make claims that their product would provide the wearer with protection from COVID-19, they would need to be able to demonstrate that the product was more than just a face covering as recommended for the general public and had, for example, met the higher regulatory standards for Personal Protective Equipment (PPE) that would enable them to make such claims. We assessed the ad in that context.
The ad was headlined “Reusable & Washable Protective Face Masks”, with text stating “Protection against bacteria and viruses!” and “2x Protective Layers” directly above the product. Further text about the product stated “Protection plus – the mask that kills bacteria/viruses on contact”, “Attack is the best defence – and that’s what this face mask proves. It doesn’t just provide a passive barrier against bacteria, viruses, pollen, pollutants, dust particles etc – it takes positive action, destroying germs on contact. The secret is pure copper fibres infused in the polyester/spandex fibre”. Further text stated “New research from the University of Southampton shows that copper can prevent the spread of respiratory viruses”.
The ASA considered that consumers were likely to understand that the mask had the ability to protect the individual wearer from infection with COVID-19. We appreciated that no mask would provide total protection, and considered that most consumers would recognise that a range of Government recommended safety behaviours were important to help minimise their risk of contracting the virus. However, they were likely to understand from the claim that the purpose of the mask was to prevent the wearer from becoming infected by instantaneously killing particles of COVID-19 that came into contact with it. We considered the ad therefore presented the mask as an effective barrier which would protect the wearer from COVID-19 particles.
We understood that face masks generally fell into one of three different regulatory categories. (1) Face masks that were intended to protect the wearer were subject to the requirements of PPE regulation, administered by the Health & Safety Executive (HSE). All PPE for the specific use to protect against the risk of COVID-19, including respiratory face masks, was category 3 PPE. That meant that these products must be “type approved” and that the production control system must be reviewed by a notified body, either through audit or sample testing. (2) Surgical face masks, intended to protect the patient from the clinician, were subject to requirements set out in the Medical Devices legislation, regulated in the UK by the Medicines and Healthcare products Regulatory Agency (MHRA). (3) General purpose face coverings that were manufactured and offered for sale, and did not fall within categories (1) and (2), were subject to the General Product Safety Regulations. We understood that copper had known anti-microbial properties. We had not, however, seen evidence that the mask had been tested and been found effective at creating an effective barrier which would protect the wearer by instantaneously killing particles of the COVID-19 virus it came into contact with, as implied by the ad. Because we had not seen adequate evidence to substantiate that the Reusable Copper-Infused Face Mask would protect the wearer from infection with the COVID-19 virus by filtering airborne particles or that it would kill particles of COVID-19 with which it came into contact, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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.
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. (Medicines, medical devices, health-related products and beauty products).
The ad must not appear again in the form complained about. We told Easylife Group Ltd not to state or imply that the Reusable Copper-Infused Face Mask presented in the ad was likely to protect the wearer from airborne infections, including COVID-19, by filtering airborne particles unless they held sufficient evidence to show that they had been tested to, and met, PPE standards. We also told them not to state or imply that the copper fibres in the product would instantaneously kill particles of COVID-19 that came into contact with it, without sufficient evidence.