Don't make medicinal claims for food supplements
Claims to treat diseases can only be made by licensed medicines – and food supplements are expressly prohibited from making claims to prevent, treat or cure disease. With this in mind it's unsurprising the ASA upheld complaints about an ad which claimed a supplement was able to cure Alzheimer's, while also purporting to improve cognitive function. In addition health claims made were not authorised on the Great Britain nutrition and health claims register. The use of alarming language (e.g. “Your BRAIN is your IDENTITY. You can SAVE it!", and imagery people with anxious expressions and their brains depicted as fragmenting into pieces) to try and compound the point was also picked up and commented on by the ASA. As a result, the ads were deemed misleading and irresponsible, (Direct Response Marketing Group Ltd t/a Wellform, 20 September 2023).
Ads for procedures abroad still need to comply with the Ad Codes
A trio of rulings against ads for cosmetic surgery which were ruled to breach the Ad Code for irresponsibly promoting cosmetic interventions and pressurising consumers. A reminder that even if the business is based abroad (in this case in the Republic of Türkiye) ads targeted at UK consumers need to comply with the CAP Code. Problematic claims included "Don’t let your nose overshadow your face", "Get a permanent beauty with Gastric Balloon" and encouraging people to view travelling abroad for cosmetic surgery as a holiday, which the ASA considered was likely to detract from the seriousness of the surgery offered. Two of the three advertisers didn’t respond to the ASA so have been referred to CAP Compliance. The Compliance team will take further action until a satisfactory resolution has been reached, in some instances this will include referral to another statutory enforcement body such as Trading Standards, (Ersoy Health Services Tourism Ltd t/a Clinic Haus, Aspro Atlantic Medikal Turizm Ticaret Limited Şirketi t/a AsproMED, Erdem Clinic 27 September 2023).
Check it's legal to advertise the product
Or at least ensure that the product doesn't exaggerate the circumstance in which the product can be used legally. An ad for an Ebike which showed a man riding the bike on roads through different locations, and included claims such as "Folding Fat Tire Electric Bike" and “750W Brushless Gear Hub Motor” was found to breach the Code because it omitted material information regarding the status of the product. It did not meet the requirements for an electrically assisted pedal cycle, and as a motor vehicle it would only be allowed on public roads if it was licensed, registered, taxed and insured. The ASA considered the ad implied that the Ebike could be used in the same way as a traditional pedal bike when this was not the case, (G-force 27 September 2023).
Moving to a different but familiar sector – complaints were upheld against an ad for a nicotine containing e-cigarette, because paid-for advertising on a media website which was not specifically targeted at trade breached the prohibition on advertising the use of unlicensed, nicotine-containing e-cigarettes in certain media. Nicotine containing e-cigarettes which hold a marketing authorisation from the Medicines and Healthcare products Regulatory Agency (often referred to as "licensed" products) may advertise, but only in line with the terms of that marketing authorisation, (Relx (UK) Ltd, 27 September 2023)
Avoid implying gambling is the solution to financial worries
The advertiser did not consider that the claim “Couple’s wedding is back on after they scooped £62,500 on People’s Postcode Lottery” and referencing it being postponed because of redundancy suggested the winners had been struggling financially before winning the prize and pointed out that the ad made clear the groom had gone back to work.
The ASA however believed that the presentation of the couple as being stressed because they could no longer afford their wedding, had the effect of suggesting that winning the lottery was able to provide a solution to their financial concerns in that regard. In the ASA's eyes that was further emphasised because the couple continued to play the People’s Postcode Lottery after one of them had been made redundant, (People's Postcode Lottery, 20 September 2023).
How to mitigate these risks
- Check the claims are appropriate for the classification of the product
- Familiarise yourself with the advertising requirements of country the consumers you are targeting live in
- Check the classification of the product
- Consider who a regulator might interpret the copy looking at the ad as a whole
- Call your friendly neighbourhood advertising and consumer products lawyer to get help with the above.
