How seeking to exploit a global public health emergency could irrevocably damage your brand says BLM

ASA TAKES ACTION ON CORONAVIRUS TREATMENT ADVERTISING

Like virtually every other sector, Creative, Digital and Marketing businesses are doing their best to cope with the impact of COVID-19 on their operations and on the work they do for their clients. In particular, many agencies and brands are continuing to struggle with the tone of their messaging and the proliferation in misinformation and opportunism as a result of the outbreak.

The Advertising Standards Authority (ASA), the UK Media Regulator responsible for advertising across the UK, has often faced criticism for being slow to respond to major issues such as the regulation of political advertising in the run-up to the 2019 General Election, but it’s been agile and clear in its response to the Coronavirus Outbreak, issuing guidance on how to advertise responsibly in light of Public Health England advice back in March in the wake of two rulings which saw ads for face masks which claims that they could protect users from infection banned as a result of misleading claims made in a way which exploit public fears over the virus.

The ASA’s CAP Code, which regulates marketing communications in the UK, has a number of very clear objectives – specifically that ads should be legal, decent, honest, truthful, not misleading and prepared with a sense of social responsibility. Additionally, any claims named in ads that relate to products, claims to treat, prevent or cure a medical condition can only be made for products licenced by the Medicines and Healthcare Products Regulatory Agency (MHRA). Any medical devices must also carry an appropriate CE certification.

One of the other key sections of the CAP Code deals with substantiation – being able to back up an objective claim with appropriate documentary evidence. In the case of medicines or treatments, the ASA would expect to see robust clinical trial evidence. The issue in the case of COVID-19 treatments is, of course, that as a novel virus there simply isn’t any real scientific consensus on what may be the most effective way to treat a disease that has already struck so many families across the UK. Exploitation of the fear of the virus is something that the ASA has been taking every step possible to discourage, and earlier this week it took steps to re-prioritise its focus to tackle opportunistic and non-compliant content across all corners of the media landscape including social, where false claims continue to spread unchecked.

Earlier this week, the ASA ruled on fast-tracked investigations into claims made by Private Harley Street Clinic, REVIV and Cosmetic Medical Advice UK that their vitamin-C-based products could boost immunity and therefore counteract COVID-19. While these investigations usually take months these rulings were finalised over a number of weeks by the ASA’s COVID-19 Taskforce, which works to co-ordinate consumer complaints and prioritise urgent action.

The online adverts (web-pages and Instagram posts) were challenged on various grounds but principally:

  • Whether their stated and implied claims that the products could prevent coronavirus/COVID-19 were “medicinal” claims for a product which was not licensed as a medicine by the MHRA.

In a move designed to send signals to others looking to exploit the pandemic, the ASA reinforced that medicinal claims and references could be made only for medicinal products, licensed by the MHRA or under the auspices of the European Medicines Agency (EMA). A product can only be rendered medicinal by its functional effect on the body, or by presenting itself as having properties for treating or preventing disease.

Steve Kuncewicz, head of creative, digital and marketing law at BLM commenting on what this means for the ad-industry supply chain said:

“Seeking to exploit a global public health emergency could irrevocably damage your brand as the ASA has proved it will step in (either on its own or working with the Competition and Markets Authority where direct enforcement action may be necessary) to protect the public on erroneous claims made against the backdrop of a worldwide health crisis. As with any advertising, claims made in haste may linger in the memory of consumers long after the COVID-19 outbreak ends and form a negative chapter in a brand’s story, especially if a regulator has had to intervene. Selling to serve is one thing, but selling irresponsibly without strong research to back up any claims is likely to lead to further action and instant erosion in consumer trust.

 

Who to contact

Steve
Kuncewicz

Partner, Head of Creative, Digital & Marketing sector group

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