Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two ads for vitamin B12 injections seen on 16 January 2022:
a. A tweet from Khush Wedding Magazine stated, “Vitamin B12 deficiency is very common and can manifest at any age. It is largely unrecognised and the NHS is reluctant to prescribe this shot. Lacking B12 can caused [sic] fatigue, muscle weakness, mental alertness, mood changes and much more”. The tweet featured a link to By Charn Aesthetic Clinic’s website.
b. The website www.bycharn.co.uk, listed various treatments including vitamin B12 injections.
Issue
1. The complainant, a pharmacist, challenged whether ad (a) was obviously identifiable as a marketing communication.
2. The ASA challenged whether ads (a) and (b) breached the Code because they advertised prescription-only medicines to the public.
Response
1. & 2. MOS Media Ltd trading as Khush Wedding Magazine (Khush) said that By Charn was their advertising client at the time and that the magazine’s social media team had written and posted the tweet under the terms of a contractual agreement between them. They said they would withdraw the tweet and ensure that future tweets complied with the Code.
By Charn said that they had supplied Khush with wording, but that the magazine had written the tweet. They had expected Khush to ensure that the advertising complied with the relevant regulations. Although they believed that the tweet was obviously identifiable as advertising material, they accepted that it was not clearly labelled as such. They said that vitamin B12 was available to purchase over the counter from health stores and pharmacies. They said that they encouraged clients to be tested by their GP for B12 deficiency. They did not believe that the ad suggested that the vitamin injections were for medical purposes.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent if that was not obvious from the context. In addition, marketers and publishers must make clear that advertorials were marketing communications.
The ASA first assessed whether or not the tweet was a marketing communication and if it fell within the remit of the CAP Code. We understood that By Charn had paid Khush to promote their business in their magazine and on social media and had supplied Khush with the wording for the tweet. We considered that because payment was made for the tweet and By Charn had control over the content of the tweet (by supplying the wording), we considered that it fell within the remit of the CAP Code.
We then assessed whether the tweet was obviously identifiable as a marketing communication. The tweet had been posted on Khush’s Twitter account and did not contain any label or identifier, such as #ad, to make clear upfront that it was a marketing communication for By Charn. We therefore concluded that it was not obviously identifiable as a marketing communication.
On that point, ad (a) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
2. Upheld
The CAP Code stated that prescription-only medicines or prescription-only medical treatments must not be advertised to the public.
We understood that all licensed forms of injectable vitamin B12 were prescription-only medicines.
Ad (a) was a tweet from Khush’s Twitter account which was visible to members of the public. It linked through to ad (b), Charn’s website, which was also visible to members of the public. We noted that vitamin B12 injections were listed on a page headed “Aesthetics” alongside other treatment options and their respective prices. While we acknowledged text stating, “We offer a consultation for each treatment to understand your needs” and “If you would like to book a treatment, please drop us a message or contact us”, the impression given was that consumers could choose and book their preferred treatment, including vitamin B12 injections, and it did not depend on the outcome of a consultation.
We concluded that ads (a) and (b) advertised prescription-only medicines to the public and therefore breached the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rule 12.12 12.12 Prescription-only medicines or prescription-only medical treatments may not be advertised to the public. (Medicines, medical devices, health-related products and beauty products).
Action
The ads must not appear again in the form complained of. We told By Charn and MOS Media Ltd t/a Khush Wedding Magazine to ensure that they did not promote prescription-only medicines to the general public and that their future ads were obviously identifiable as marketing communications, for example with the use of clear and prominent identifiers such as #ad.
