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Worst offenders

ASA clamps down on online ads that falsely attribute medicinal properties to health and beauty products

A survey by the Advertising Standards Authority (ASA) has found the highest rate of non-compliance among digital advertisements in the health and beauty sector. The ASA is the independent body established to police advertising in the UK. It monitors compliance with the British Code of Advertising, Sales Promotion and Direct Marketing (BCAP), which has a two-fold aim; first, to protect consumers from false, misleading or irresponsible advertising, and second, to create a level playing field for advertisers to the UK public.

In addition to investigating specific complaints, part of the ASA's function involves the monitoring of advertisements through actively researching what is published in various media. In December, the ASA published its 2008 survey of compliance rates in digital media, and from the results published, it seems that, in general, compliance with the Code is good. However, advertisers in the health and beauty sector would be well advised to review the content of their digital media advertising in the light of the survey's findings.

Of course, the promotion of prescription-only medicines to the general public is prohibited. Companies using websites to provide information that may lead to the prescribing, or supply, of prescription-only medicines should contact the Medicines Healthcare Regulatory Agency (MHRA) if they have queries regarding what is permitted to be placed on such websites. As a result, the ASA's survey did not extend to a review of such medicines.

In its survey, the ASA assessed the compliance rate of online and digital media by analysing data collected during July and August 2008. It looked at digital media advertisements from a range of sources such as banners, pop-ups, virals and SMS. A total of 551 advertisements was considered. Of that number, 16 appeared to breach the Code. Although this is a good compliance rate overall, the worrying statistic is that, of the 16 advertisements in breach of the Code, 10 were for products marketed in the health and beauty sector. This represented a compliance rate in this sector of 72 per cent compared to the overall compliance rate of 97 per cent.

Of those advertisements in this sector that were identified as being in breach, the greatest number by far related to weight-loss products. The ASA found that eight advertisements in relation to such products contained unsubstantiated efficacy claims, among other breaches. In all cases, the ASA's intervention led to the removal of the claims from the advertisements.

Advertisers should note that if product efficacy claims can be substantiated, there is a risk of the product falling within the definition of a "medicine" under the Medicines Act 1968 (as amended). In such circumstances, the advertiser would run the risk of being found to have unlawfully marketed an unapproved medicine, which is a criminal offence. The situation concerning such "borderline" products is therefore a tricky one for companies to navigate and much will depend upon the product in question and the proof that exists of its efficacy. For example, on the one hand there will be a commercial driver to make efficacy claims that differentiate the product, but the advertiser needs to be aware that a claim suggesting that a product may be used to treat or prevent disease in human beings runs the risk of bringing the product within the definition of a medicinal product.

Advertisers in this sector should also familiarise themselves with the Consumer Protection from Unfair Trading Regulations in force in the UK from the end of May 2008. Under these regulations, it is a criminal offence to mislead consumers through false statements, deception, omissions or even, under certain circumstances, if the traders have not met the standard of special care and skill they are expected to exercise and which would be commensurate with honest market practice. Advertisers would be well advised to review these regulations thoroughly and audit their advertising copy procedures to ensure they avoid criminal offences.

It is therefore likely that, as digital media advertising develops at an increasing rate, the ASA will be keeping a closer watch on compliance with the Code in the digital media. Following the compliance failures identified by its survey, the ASA can be expected to give the health and beauty sector special attention when carrying out future online monitoring. It is also likely that this will increase the risk of advertisers found in breach of the Code being prosecuted under the Consumer Protection from Unfair Trading Regulations.

The Authors
Dr Gareth Morgan is a partner, and Nick Cody, an associate, at European law firm Taylor Wessing

13th March 2009

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