Promotion of products online, whether through websites or social media, is increasingly important, but advertisers need to remember that the usual rules still apply, especially in heavily regulated fields.
Research by IAB UK and PwC indicates that digital advertising spend in the UK surpassed £23bn in 2021, rising over 40% from the previous year. However, the normal advertising rules still apply. If anything, the degree of scrutiny given to online promotion will be higher than with traditional methods.
In the UK, as in other countries, the rules on the advertisement of medicines and medical devices are tough. The risks to consumers and patients where these highly-regulated products are inappropriately promoted are high. In addition to the normal requirements not to mislead buyers or exaggerate the benefits of a product, and to have adequate support for any claims made, advertisers of medicines and medical devices must comply with rules specific to those products. Any medicinal claims for a product will need scientific evidence in support and the product should have the appropriate regulatory certification or approval.
Two recent examples show how the rules on promotion of medicines and medical devices through online methods are enforced.
Online ‘hayfever jab’ adverts
Triamcinolone acetonide (branded Kenalog) is a prescription-only medicine (POM) licensed for specific conditions such as the treatment of joint pain, swelling and stiffness in inflammatory disorders. As a POM it cannot be promoted directly to the public, and doing so is a criminal offence under medicines regulations. Kenalog is not licensed in the UK for the treatment of hayfever, and any use in this way is at the professional discretion and under the personal responsibility of an individual clinician. However, the product has been widely promoted on social media and websites.
On 4 August, MHRA and Committee of Advertising Practice (CAP) issued a joint enforcement notice against promotion in this way. Direct and indirect promotion are covered, including paid-for ads, non-paid-for image or video posts and influencer marketing. Advertisers are warned that all references to Kenalog in text, images or emojis on social media must be removed. They must also avoid commonly-used descriptive phrases for the jab such as ‘hayfever injection’ or hayfever jab’ and any account names, testimonials or memes referring to the product. The date set for removal was 29 August, and now the CAP’s compliance team will use targeted software to remove non-compliant ads. Those continuing to promote illegally may be referred to the MHRA.
Blue-light lenses for gamers
This promotion involved an ad that was included within a live Twitch stream by BobDuckNWeave in March 2022. In the ad, a representative of Gamer Advantage LLC spoke about the advantages of their blue-light glasses in improving sleep. The words used included:
“We are the first clinically proven lens to stop the suppression of melatonin so you can get a better night’s rest; and sleep is the number one medicine, and has been since the beginning of time.”
Users were shown trying on the glasses, and talking about sleep as “the basic foundation”.
A complaint was filed with the Advertising Standards Authority (ASA), which has oversight of UK advertising.
The ASA considered Gamer Advantage’s arguments that there was scientific support for their product and claims, but ultimately ruled against the ad.
The scientific evidence presented was patchy and not all in favour of the product. The ASA’s view was that this was not adequate to support the claims. Proper support would require clinical trials conducted on humans that had been peer reviewed and published. Without clear evidence of this standard, Gamer Advantage should not claim that their blue-light glasses were able to improve sleep quality.
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