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Beware the desire to "make hay while the sun shines" – the ASA warns marketers to "think very carefully" before making COVID-19 claims

17 June 2020. Published by Sarah Mountain, Partner and Samuel Coppard, Senior Associate

There is no denying the recent popularity of health and wellness trends: As at the end of 2018, the market had an estimated global value of $4.2 trillion. During the current climate, it has understandably gathered even more traction, with consumers increasingly concerned about obtaining and maintaining healthy bodies and minds.

With arguably the biggest captive audience in retail history and a reported 200% increase in online purchases of home and leisure goods, since the start of 2020, it is inevitable that businesses will see the obvious potential in this market and leverage it, where they can. 

However, a host of recently upheld ASA complaints serve as a timely reminder that advertisements must not exploit audience fears and/or mislead consumers into buying products. In this regard, the ASA has warned businesses to "think very carefully" before making direct or implied claims about COVID-19. The regulator has also issued a comprehensive guidance note, two industry wide Enforcement Notices and has even established a specific forum, for COVID-19 related complaints.

Rulings and ASA Guidance

In Issue 10 of RPC Bites, we reported on the ASA's ruling on adverts for "Revival Shots", which contained COVID-19 related claims. Here, we look at three other recent rulings.

Easy Shopping 4 Home Ltd

This 4 March 2020 ruling concerned Easy Shopping's Amazon listing for a "Coronavirus Anti Corona Virus Vented Face Mask 3M Disposable Respirator, FFP3, Valve, 8835 (1)”. The listing appeared at a time when there was widespread news coverage regarding the outbreak of COVID-19 and a small number of confirmed cases in the UK.

For these reasons, the ASA concluded that the wording would lead consumers to believe that the mask could help them to protect themselves from becoming infected with COVID-19, despite the fact that this was contrary to the then-current recommendations of Public Health England. In breach of the CAP Code, the listing was therefore found to be "misleading, irresponsible and likely to cause fear without justifiable reason".

Cosmetic Medical Advice UK Ltd t/a Dr Rita Rakus Clinic

In this 22 April 2020 ruling, the ASA upheld a complaint regarding two adverts for an intravenous drip. The first ad included a claim that "Boosting your cellular NAD+ levels and sirtuin activity may therefore be a good way to boost your immune system and protect yourself from viral infections". The second contained the words “Dr Rita Rakus clinic is a medical clinic! We carefuly[sic] monitor Government and The World Health Organisation advice and at the moment only one thing is very clear! Strong Immune System is key …".

The ASA concluded that the ads breached the CAP Code, as they implied that the drip could prevent people from contracting COVID-19. This was compounded by the fact that they were posted shortly after the WHO declared a pandemic and contained references to "viral infections", "boosting" the immune system and Government / WHO advice. Another issue was that in a separate breach of the CAP Code, the ads contained medicinal claims for unlicensed products.

This ruling also prompted an industry-wide Enforcement Notice to be issued, in conjunction with the Medicines and Healthcare Products Regulatory Agency (MHRA), prohibiting advertisers of IV drips from stating or implying that they can help to prevent or treat COVID-19. The Enforcement Notice confirmed that the ASA would be undertaking targeted enforcement using monitoring technology to quickly identify and take action against non-compliant advertisers in this area (including possible referrals to the MHRA). On 28 May 2020, a second Enforcement Notice was issued, this time concerning the advertisement of vitamin shots, following an upheld adjudication against SkinSpaceUK (see below).

PCK SKIN (Manchester) Ltd t/a SkinSpaceUK

Another ASA ruling, this time from 13 May 2020, concerned an advert which promoted medicines and claimed "ITS [sic] TIME TO BOOST YOUR IMMUNITY! IN THE FIGHT AGAINST VIRUSES! BOOK IN FOR YOUR VITAMIN D & B12 SHOTS! SUPPORTS YOUR IMMUNE SYSTEM, LUNG FUNCTION AND AIDS FASTER RECOVERY FROM ILLNESS & VIRUSES!".

The advert took the form of a promotional email, which had been sent to a customer subscription list during the COVID-19 outbreak. As such, the ASA determined that consumers were likely to understand that "VIRUSES" included coronavirus and to conclude that the promoted vitamin shots were an effective means of preventing or treating COVID-19.

The ASA has ruled that all adverts listed above must not appear again.

ASA Guidance Note

In March 2020 and presumably in response to cases such as these, the ASA issued specific guidance on advertising responsibly during the COVID-19 outbreak.

In the guidance, the ASA reiterated that:

  • for medicines and medical devices, claims regarding the prevention, treatment and/or cure of infection can only be made for products that are licenced medicines or appropriately marked medical devices;
  • for alternative and/or complimentary therapies, there must be very robust clinical trial evidence, which proves that the products work; and
  • for foodstuffs and food supplements, the CAP Code contains specific rules, which limit the claims that can legitimately be made. These rules again exclude claims regarding the prevention, treatment and/or cure of human disease.

The ASA has even set up a new report form for use in connection with complaints that specifically concern COVID-19 advertisements and has stated that its "primary aim during the pandemic is to protect the public by continuing to take action against ads promoting ‘cures’ or ‘guaranteed protection’ from the virus".

Comment

The rulings and related Enforcement Notices send a definitive message to advertisers: Unfounded COVID-19 claims will not be tolerated. This hard-line stance is unsurprising and is consistent with what we have come to expect from the regulator, particularly in circumstances where public health is concerned.

Whilst there has been an (un)healthy dose of marketers getting it wrong in the post COVID-19 world, it is worth noting that the CAP Code itself remains unchanged. With this, plus an awareness of the ASA's particularly sensitivity around COVID-19 advertisements in mind, most businesses can hope to successfully navigate the pitfalls.