Ad description

An insert, in Personal Choice catalogue, for a herbal, erectile dysfunction treatment was headlined "Maximus will add length and thickness to your penis". Each month it will get bigger. Bigger when relaxed, bigger when you're turned on". The ad included various efficacy claims and testimonials in support of the product and featured pictures of couples having sex as well as a diagram of an erect penis in cross-section.

Issue

1. Norfolk Trading Standards challenged whether the ad was offensive and inappropriate for inclusion in a general interest catalogue.

The ASA challenged whether:

2. the efficacy claims for the product, including the implied efficacy claims in the testimonials, and that it was backed by "Many years of scientific research and testing on over 30,000 men worldwide" were misleading and could be substantiated;

3. the testimonials were genuine; and

4. the ad breached the Code by making medicinal claims for an unlicensed product.

Response

1. Life Healthcare said the ad had been booked for inclusion in a mailing pack advertising sexually explicit goods, but had been enclosed in the Personal Choice catalogue, which was owned by the same company, in error. They said it would have been less offensive to the audience of the adult mailing.

2. Life Healthcare said Maximus was an American product and that the content of the ad was based upon copy which was written for the US marketplace. They said they had launched Maximus throughout Europe on the strength of information provided by their suppliers. They said they would now obtain further information about the product, seek advice on content where appropriate and review future literature. They apologised for any breaches of the Code caused by their claims in the ad.

Assessment

Assessment

1. Upheld

The ASA noted that the ad had appeared in the Personal Choice catalogue in error, however we considered that the ad needed to be assessed in the context in which it was published, rather than that which may have been intended.

We noted that the ad featured two pictures of couples in the act of making love, including one in which the woman was in the throes of passion and another where a different woman was naked with a man's head between her breasts. We noted that the insert also contained a large diagram of an erect penis and also featured prominent and explicit testimonials that discussed penis size and length.

We considered that that content was graphic and sexually explicit and out of keeping with the content of the health, home and garden catalogue which it accompanied.

We concluded that it was therefore likely to cause widespread offence to the catalogue's readers.

On this point the ad breached CAP Code (Edition 12) rule  4.1 4.1 Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code.
 (Harm and offence).

2., 3 & 4. Upheld

We considered that the claim in the ad and testimonials, that the Maximus product could increase penis size and enhance erections were capable of substantiation and we expected to see robust, scientific evidence, such as clinical trials conducted on people, that demonstrated the efficacy of the product. We also considered, because the ad claimed that the product could produce a physiological change, that the ad had made a medicinal claim. We also noted that the Code required marketers to hold documentary evidence that testimonials used in their ads were genuine.

We noted that we had not received any evidence from Life Healthcare in support of their claims or testimonials that showed that the product was guaranteed to work or that it had a licence from the MHRA to make these medicinal claims. In the absence of such evidence we concluded that the claims and testimonials were misleading, that the ad had made medicinal claims for an unlicensed product and had therefore breached the Code.

On these points the ad breached CAP Code 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),  3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.  (Exaggeration),  3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it.    3.47 3.47 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer.  (Endorsements and testimonials),  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.
   12.6 12.6 Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations.    12.9 12.9 Marketers must not encourage consumers to use a product to excess and must hold proof before suggesting their product or therapy is guaranteed to work, absolutely safe or without side-effects (subject to rule  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.
 ).
 (Medicines, medical devices, health-related products and beauty products) 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).

Action

The ad must not appear again in its current form. We told Life Healthcare to ensure that they held robust substantiation for their claims and the appropriate MHRA licences before making medicinal claims. We told US Euro Link Plc to take more care when choosing material for inclusion in their publications.

CAP Code (Edition 12)

12.1     12.11     12.6     12.9     3.1     3.11     3.45     3.47     3.7     4.1    


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