Don't make medicinal claims for food supplements
As any medicines regulatory affairs professional will tell you, a product doesn't have to be a medicine to be presented as a medicine and fall foul of medicines regulation. So advertisers of new products need to be wary of bringing their product into the medicinal sphere by way of presentation, especially when buying product from outside of the UK.
This is because medicinal products include those which are presented as having properties of preventing or treating disease in human beings. Without a medicines license such claims cannot be made. An example of a food supplements company stepping into medicinal claims territory came this week with Coventry Trading Standards complaining to the ASA about claims to prevent, treat or cure disease which is prohibited for any food. The law and Codes say "disease" but this term covers much more than the everyday meaning of the word, encompassing any kind of condition, and so claims to support conditions that are not diseases in the everyday sense are also caught.
Myriad non-compliant claims to prevent, treat or cure anxiety, depression and stress as well as help support ADHD, AuDHD, autism and other neurodiverse conditions were identified by Trading Standards and ruled non-compliant by the ASA – leading to the removal of the products from the advertiser's website. The ASA's remit doesn't cover what advertisers actually sell, but this is an example of the statutory regulator, Trading Standards, using the self-regulatory system for back up, (Dochsa Ltd 7 June 2023).
Factor in the consequences of an unexpectedly successful promotion
A rapid delivery company had an appealing promotion – “£20 off when you spend £21!” A customer immediately tried to redeem the offer only to be informed it was paused.
Unfortunately, the advertiser had paused it because they were unable to meet the sudden uplift in orders. These include overarching requirements to deal with consumers fairly and avoid unnecessary disappointment, as well as ensuring that consumers have all the information they need to decide to take part. This means significant terms and conditions, including restrictions need to be clear to consumers in the initial advertisement and certainly before they decide to participate. This rule correlates broadly with contract law, but there are additional Code requirements that promotors must conduct promotions equitably, be seen to deal fairly and honourably with potential participants, and must avoid causing unnecessary disappointment. The latter is why the ASA consistently uphold complaints against promotors who end promotions early.
The ASA ruled that because the location restrictions were not stated, the promotion had not been administered fairly and that by its nature, a discount code was scalable and did not rely on providing a product with limited availability. So, by not honouring the promotion the advertiser had caused participants unnecessary disappointment.
Make sure everyone in the business is clear on the extent of the promotion and ensure that the marketing for the promotion is also clear. In this instance including location restrictions and stating a redemption cap would probably have avoided the issue, (Getir UK Limited 7 June 2023).
Match the claim to the evidence
A common pitfall when it comes to evidence is holding great substantiation but then making a claim that goes beyond it, for example using an absolute efficacy claim when the evidence doesn't go that far. When the evidence doesn't match the claim, the claim is going to be considered misleading.
Claims for an intense pulsed light device which promised "permanent visible hair removal" were found misleading because the evidence showed that although effective in reducing hair count, it would not stop all hair regrowth in the treated area. For various reasons, hair regrowth could happen in the future so although the product worked, it couldn't go as far to say the effect was permanent, (Proctor & Gamble 7 June 2023).
Contextualise those environmental claims
Three high profile rulings against energy companies, see our "Contextualise those environmental claims", and our sustainability hub for more information.
How to mitigate these risks
- Check the claims are appropriate for the classification of the product
- Step through the promotion and cross-check the description against everyone's understanding
- Get fresh eyes to look at the claim and see how it might be interpreted against the evidence
- Call your friendly neighbourhood advertising lawyer to get help with all of the above
