A TV ad for Flarin soft capsules, seen on 2 September 2019, featured a voice-over that stated, "Flarin is different". An image of Flarin packaging appeared on screen, along with a Flarin logo with the text "UNIQUE LIPID FORMULATION". In the bottom-left corner of the screen was an animated man with a monocle. The voice-over stated, "For joint pain, no other ibuprofen has been proven to be more effective." On-screen text sated, "NO OTHER IBUPROFEN IS MORE EFFECTIVE FOR JOINT PAIN". The voice-over continued, "And Flarin's unique lipid formulation also helps shield your stomach from damage". On-screen text stated, "HELPS SHIELD YOUR STOMACH FROM DAMAGE". The voice-over stated, "So when joint pain flares, choose Flarin." On-screen text stated, "WHEN JOINT PAIN FLARES, CHOOSE FLARIN". Smaller text at the bottom of the screen throughout the ad stated "Flarin 200mg soft capsules. Relieves joint, muscle and back pain. Always read the label. Contains ibuprofen".
The Medicines and Healthcare Products Regulatory Agency (MHRA) Advertising Team, who believed that the claim "Flarin is different" in juxtaposition with the top parity claim could imply that the difference related to effectiveness rather than formulation, challenged whether the ad was misleading.
infirst Healthcare Ltd stated that the key objective of the ad was to communicate that Flarin was different to other ibuprofen products, due to its unique lipid formulation. The wording was prominent throughout the ad and remained on screen in a triangular flash next to the pack. When the words “Flarin is different” were spoken in the voice-over, the triangular flash “popped”, drawing viewers’ attention to the unique lipid formulation. The movement of the on-screen animated character also emphasised that point.
They said that the claim “no other ibuprofen is more effective for joint pain” was compliant with the Proprietary Association of Great Britain (PAGB) Consumer Code for Medicines, specifically rule 43 on top parity claims. They did not believe that the statement suggested superiority. There was an obvious pause before the ad moved to the next frame and any statement was made about efficacy. They said that, although they did not believe the ad implied that Flarin was more effective than other types of ibuprofen, the lipid formulation was relevant to both the efficacy and stomach shielding attributes of the products. There was no other ibuprofen product on the market with this formulation and consumers needed to know this in order to make an informed decision.
It would be difficult to convey the full scientific rationale for this in suitable language for consumers, so they just made the statement of fact "Flarin is different" and then communicated the product benefits. They had submitted positive evidence to PAGB and Clearcast that supported the top parity and unique lipid formulation claims. Infirst said that they had conducted research with consumers, prior to finalising the wording of the ad, which suggested they did not make a link between the efficacy statement and the claim “Flarin is different”. They provided copies of their research. Clearcast said they were satisfied that the claim “Flarin is different” was substantiated and that it was in line with the claim “unique lipid formulation”, as it was different in make up to other ibuprofen products on the market and it helped with other symptoms such as stomach damage. They considered that the ad included a fair top parity comparison that was suitably substantiated, and did not imply superior effectiveness of the product in any way. PAGB said they had approved the claim “Flarin is different” based on the product’s unique lipid formulation. The wording appeared on screen at the same time as the claim was made, making the connection clear. They believed that “no other ibuprofen is more effective for joint pain” was clearly a top parity claim and did not imply superiority over other products.
The ASA understood that the ad was for an ibuprofen product and was intended to make two distinct claims. Firstly, that Flarin was just as effective, but not more effective than, other ibuprofen products on the market (a “top parity claim”). Secondly, that the product was “different” because it contained a lipid formulation that made it easier on the stomach.
The complainant, the MHRA Advertising Team, did not raise in their complaint any concerns that either of those claims were not true – rather they were concerned specifically that those claims were not clearly enough delineated and that it may not be clear to what exactly the ad was referring when it referred to the product being “different”. We therefore assessed how the ad was likely to be interpreted by consumers. The voice-over in the ad stated “Flarin is different”, and the next claim that was spoken was “for joint pain, no other ibuprofen has been proven to be more effective”.
While the claim “unique lipid formulation” appeared in on-screen text at the same time as the voice-over stated “Flarin is different”, we considered viewers would not necessarily understand that the two were linked, particularly as they would be unlikely to understand what the significance of the lipid formulation was before they were provided with further information about its effect on the stomach. We considered that the claim “for joint pain, no other ibuprofen has been proven to be more effective”, on its own, was likely to be understood as meaning that there were no other ibuprofen products on the market that were more effective than Flarin for joint pain relief ? that is to say that Flarin was just as good, but not better than, any other ibuprofen on the market for treating joint pain. However, in the context of the ad, where that statement was directly preceded by “Flarin is different”, and the quality that made the product different (its formulation) was presented as secondary, we considered that the ad was likely to give viewers the impression that Flarin was more effective for joint pain relief than other types of ibuprofen.
The words "more effective" in the on-screen text were highlighted in red text, while the rest was in blue, which further reinforced the impression that the difference related to efficacy for pain relief. We noted that infirst Heathcare disputed that interpretation and had provided consumer research in support of that position and we therefore reviewed that research: twenty people were asked to view the ad and were then asked "Is Flarin different to other pain-relieving products & if so how?". Three responses were recorded, none of which suggested that the respondents considered the product to be more effective for pain relief than other pain-relieving products. Two of those responses demonstrated that respondents understood that there was a difference, but not what that difference entailed. Taking into account the size of the response group and the nature of the responses, we did not consider that the results were sufficient to demonstrate that viewers more generally would understand the comparison in the way infirst Healthcare believed they would.
Because we considered that the ad implied that Flarin was superior to other ibuprofen products for treating joint pain, we concluded that the ad was misleading and breached the Code. The ad breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
The ad must not appear again in the form complained about. We told infirst Healthcare Ltd to ensure they did not imply that Flarin was more effective for pain relief than other forms of ibuprofen.