Out-Law / Your Daily Need-To-Know

ASA clamps down on medicinal advertising amid coronavirus pandemic

Out-Law News | 28 Apr 2020 | 10:19 am | 2 min. read

The Advertising Standards Authority (ASA) is taking action against advertisers claiming that products which are not licensed medicines could have medicinal properties, with three recent rulings all finding against such advertisements.

The ASA issued three rulings on 22 April against advertisers who had each claimed that an intravenous (IV) drip would boost immune systems. Two of the rulings were against advertisers who had made a link between their treatments and coronavirus, or Covid-19, while the third upheld a complaint against an advert which did not reference Covid-19 explicitly.

The complainants in all three cases challenged the adverts on the basis that they were making claims for unlicensed medical products. The ASA agreed.

It said it had consulted with the Medicines and Healthcare Products Regulatory Agency (MHRA) in one case, against the Private Harley Street Clinic. The MHRA said any mention of coronavirus in the promotion of an IV drip product would bring the product under medicines regulations, as would any claim that implied treatment of, or protection from, the virus.

Copy clearance expert Huw Cookson of Pinsent Masons, the law firm behind Out-Law, said the rulings were “unequivocal”.

“Advertisers using the pandemic to sell products or services in the healthcare sector are likely to face the wrath of the ASA,” Cookson said.

In a complaint brought against REVIV UK, the ASA found that although its IV drip product contained four licensed medicines these were not suitable for treatment of Covid-19 and so the advertiser should not have suggested they were.

The ASA also noted that any small print saying that products were not intended to treat, cure or prevent disease would not be enough to ameliorate or negate other claims made in relation to the product.

In its ruling on the third complaint, against Cosmetic Medical Advice UK, the ASA said that while the advertiser did not specifically say its products could be used as a treatment for Covid-19, its claim that they could be used as a protection against viral infections implied that the IV drip offered could help to prevent people from catching the coronavirus.

Life sciences law expert Catherine Drew of Pinsent Masons said: “The decisions of the ASA reiterate the principle that advertising of products which are not medicines, should not contain medicinal claims. The definition of a medicinal product comprises a functional and presentational limb, meaning that any product which is presented as having properties of preventing or treating disease is considered to be a medicine.

“It is an offence to advertise an unlicensed medicine and so companies need to be careful that the advertisements relating to their products do not lead people to believe they are selling a medicine. In times where there is much public concern about a virus against which there is currently no vaccine, causing a disease for which there is currently no cure – the principles are more important than ever, and as we can see the ASA are diligently carrying out their role and enforcing the rules.” Drew said.