Blossom, tulips and freshly cut grass signal spring in full bloom and summer (albeit an English summer!) being just around the corner. They also signal the dreaded seasons of allergies and irritation for hay fever sufferers.
Last month, the Advertising Standards Authority (the "ASA") published some guidance on 'allergy' advertising and now it has published four rulings against beauty and wellness clinics advertising prescription only medicines to hay fever sufferers.
Hay fever remedies come in a multitude of forms, including herbal remedies and food supplements, over the counter medicines, medical devices and alternative therapies and remedies (all of which are subject to advertising rules). They are also being offered by private clinics in the form of a steroid injection (marketed as Kenalog), which can help to temporarily alleviate symptoms by suppressing the immune system. However, these injections are prescription only medicines.
The ASA's recent rulings highlight the ban on advertising prescription only medicines ("POMs") and prescription-only medical treatments ("POM treatments") to the general public. The three clinics that responded to the ASA all stated that they were not aware of the ban on advertising POMs. However, they accepted that they should not have advertised their products to the public and all four clinics were told not to advertise POMs and POM treatments in future.
1. Advertising medicines
It is important to remember that:
- "Medicines" refer to products that are either medicinal by function (i.e. they contain one or more active medicinal ingredients) or by presentation (i.e. they are presented as being able to treat or prevent disease or correct, restore or modify physiological functions);
- Over the counter, general sales and pharmacy medicines can be advertised to the general public, provided that they hold the necessary licences, registrations and marketing authorisation, don't make off-label claims and comply with advertising rules; and
- POMs and POM treatments (i.e. those that need to be prescribed by a doctor or other authorised health professional and dispensed from a pharmacy or from another specifically licensed place) cannot be advertised to the general public.
2. The ASA could be monitoring you next
The majority of advertising complaints considered by the ASA are usually initiated by customers and competitors, with some deriving from industry bodies. However, it is important to note that the ASA can also monitor ads and initiate investigations itself (without receiving any complaints). The ASA may focus its attention on a particular area and take action to ensure that standards are maintained.
This appears to be the case with the four recent rulings, which do not reference any complainants. Furthermore, during the period from when the ads were published (January 2022) to date, the ASA has investigated the ads and published its findings, and issued guidance on 'allergy' advertising and POMs.
Therefore, companies should take note that POMs and POM treatments that are being advertised contrary to the prohibition are on the ASA's radar and although these rulings relate to a hay fever injection, their product category could be next.
3. Social media posts
The adverts challenged by the ASA in its recent rulings were seen on Instagram and Facebook. The increasing number of social media platforms, ad formats (videos, reels, stories, posts etc.) and the sheer volume of adverts can make it difficult for authorities to monitor advertising and they are often reliant on complaints. In addition to this, the ability to quickly take down and replace or revise social media ads means that brands might be a bit willing to take greater risks with the type of content that appears in social media.
However, over the last few of years, there has been a focus on social media advertising, particularly in relation to influencer activity and clearly labelling ads. As mentioned above, the ASA's recent rulings now make it clear that the ASA is willing to focus on specific product categories and that it is not deterred by the volume of social media advertising to be monitored.
How can we help you?
If you sell POMs or POM treatments (whether sold via clinics or online consultations and platforms), we can help you to navigate the advertising rules and work with you on your advertising strategies. We can look at your marketing communications (including your website, social media posts, influencer activities and other advertising) and advise on the type of content and communications that would be caught by the prohibitions and what content might be acceptable.
This article was authored by Sonal Patel Oliva from our Advertising & Consumer Protection group. If you have any queries or would like any further assistance about advertising and consumer law matters, please do not hesitate to get in touch with Sonal or another member of our Advertising & Consumer Protection group.
Sign up to our email digest