Advertising prescription only medicines is prohibited
There is an absolute ban on advertising prescription only medicines to the public. One of the most common ways this comes up in ASA rulings is ads for Botulinium Toxin (i.e. Botox). Complaints from the professional body, the Joint Council for Cosmetic Practitioners (JCCP), against an ad for Botox on an appointment booking service for beauty businesses was inevitably upheld. The ASA also ruled the name "Dr Bunny Aesthetics" would be taken as meaning that the clinic was owned and operated by someone who held a general medical qualification. The repeated use of the prefix "Dr", reference to “Advanced Aesthetics Practitioners” furthered that impression and as there was no evidence that this was the case, the name of the clinic was also ruled misleading. In this instance the advertiser changed its name. The ASA doesn't regulate products or services itself but will assess claims in a name when the name appears in advertising. (Dr Bunny Aesthetics 24 April 2024)
Implied medicinal or medical claims cannot be made for unlicensed/unregistered products
An ad which promised to relieve bloating caused by the menopause upon adding 2-3 drops of peppermint oil to a "VolcanicX" bracelet breached the Code for referencing a medical condition for a product which wasn't licensed as a medicine or registered as a medical device. The advertiser asserted that the product was a medical device but was unable to provide the relevant certifications and the ASA ruled the ad was in breach of the CAP Code. It's worth remembering that if the advertiser had been in a position to prove the product was a medical device, it would have had to provide evidence substantiating the efficacy of the claims made. (GKOnlineCo Pty Ltd 24 April 2024)
Avoid comparative efficacy claims for licensed medicines
In a rare ruling against a licensed medicine, the ASA ruled that an ad for a joint relief medicine breached the Code. Although the ASA accepted that the voice over claim “[f]or joint paint, no other ibuprofen has been proven to be more effective” would be understood as meaning that the advertising product was just as good, but not better than, any other ibuprofen on the market for treating joint pain. There wasn't an issue in relation to the product's efficiacy. However, the ASA looked at the presentation of the top parity claim and a claim that it was the only product to include a particular ingredient in the context of the ad as a whole (including which words were emphasised on screen) and took the view that the overall impression was that the medicine advertised was superior to other ibuprofen products for treating joint pain. (infirst Ltd 17 April 2024)
Don't rely on "subject to availability"
A train company's invitation to "[s]it back, relax, and enjoy complimentary refreshments" in First Class was found to be misleading by the ASA when following complaints that customers did not receive complementary food and beverages during their train journey. The advertiser argued the disruption caused by industrial action and bad weather during the promotion led to resourcing issues, and highlighted complementary food and drink was marked as "subject to availability" on the website. The ASA noted that depending on the day of the week between 70-78% of scheduled were due to operate with catering and that there was no way for customers to ascertain which services would not. 70-78% was insufficient to substantiate the impression that complimentary food and drink would be available and "subject to availability" did not counteract the overall impression of the refreshment offering being available –which was presented as a key part of the First Class experience. (Cross Country Trains, 17 April 2024)
How to mitigate these risks
- Don't advertise POMs
- Remember referring to a medical condition is restricted to certain products
- Whether or not it's a medicines ad consider the overall context
- If promising complimentary food make availability clear
- Call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
