Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Is your product a medical device?
Is your product appropriately classified?
Is your product appropriately certified?
Do you hold evidence to support all efficacy claims?
What about conditions for which medical supervision should be sought?
Is your product a medical device?
The Medical Devices Regulations 2002 (“the Regulations”), as amended, transpose various EC Directives into UK law.
The Regulations define a medical device as:
“an instrument, apparatus, appliance, material or other article, whether used alone or in combination, together with any software necessary for its proper application, which is intended by the manufacturer to be used for human beings for the purposes of: diagnosis, prevention, monitoring, treatment or alleviation of disease; diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap; investigation, replacement or modification of the anatomy or of a physiological process; or control or conception; and which does not achieve its principal intended action in or on the human body by pharmacological, immunological or metabolic means, even if it is assisted in its function by such means”.
The definition includes devices that are:
“intended to administer a medicinal product or which incorporate as an integral part a substance of which, if used separately, would be a medicinal product and which is liable to act upon the body with action ancillary to that of the device.”
Medical devices are of three types: general, active implantable and in-vitro diagnostic (the last two are specifically defined in the Regulations). If a product does not have one or more of the medical purposes referred to (for example, it has a purely cosmetic purpose) it does not fall within the definition of a medical device.
If marketers are unsure about the definition of their product, they should contact the Medicines and Healthcare products Regulatory Agency (MHRA). https://www.gov.uk/topic/medicines-medical-devices-blood/medical-devices-regulation-safety.
Is your product appropriately classified?
Following Brexit, the Regulations regarding device certifications changed, meaning that marketers selling in Great Britain would need to ensure medical devices are either CE Marked (the original EU system) or UKCA Marked. In the future, all products (including those previously CE Marked) will need to be UKCA Marked for them to be sold in Great Britain. Marketers should refer to the MHRA to establish when this transition deadline will take place.
Due to the Northern Ireland protocol, CAP understands that medical devices being sold in Northern Ireland must be CE Marked even if the product is also being sold in Great Britain under a UKCA marking. Marketers seeking to sell their device in Northern Ireland are advised to obtain legal advice to ensure the device is correctly certified.
Under both systems, medical devices are categorised into four classes (I, IIa, IIb and III) according to the degree of risk inherent in the device. Class I general medical devices are generally sold on a self-declaration basis. Other, higher-risk products have to be assessed by ‘notified bodies’ before they can be marketed. Similarly, some in-vitro diagnostic devices (IVDs) may be sold without the intervention of a notified body whereas for higher-risk IVDs a notified body must be involved.
To comply with the Regulations, a device must meet the “essential requirements” set out in the relevant Directive. Among other things, they require the manufacturer to be able to demonstrate that a medical device is safe and fit for its intended purpose taking into account any risks as specified by the manufacturer. Because the onus is on the manufacturer to comply with the Regulations, manufacturers should not state or imply that their device has been “approved” or “certified” by the MHRA.
Marketers should carefully consult this MHRA Guidance on Regulating Medical Devices in the UK.
In 2016 the ASA investigated a marketer’s claims that its “Acupressure Mat” could treat lower back pain, sciatic pain and headaches. Because the device was not CE Marked it was ruled that the medical claims breached the Code (Pranamat Sales and Marketing SA, 30 March 2016).
Similarly, in 2012 the ASA ruled against a marketer which claimed that one of its infant drinking bottles was “effective against colic” because the bottle was not a CE Marked medical device (Jackel International Ltd, 19 December 2012).
In 2018 the ASA ruled on an ad for a circulation device which claimed to increase blood flow to the legs and relieve pain and swelling and alleviate circulatory issues including blood clots, swelling, cold feet, cramps, calf pain and numbness. In that case, whilst the device was certified with a notified body, that certification did not take place with a notified body within the EU and as such, did not hold the requisite certification (Comfort Click Ltd, 28 February 2018).
Is your product appropriately registered?
In addition to holding the appropriate device certification, from January 2021, all medical devices must be registered with the MHRA before they can be placed on the market in Great Britain (England, Wales and Scotland). These registration requirements differ for Northern Ireland. This MHRA Guidance on the registration of medical devices explains the requirements in more detail.
Do you hold evidence to support all efficacy claims?
Marketers need to ensure that they hold robust evidence for their medical claims (Rule 12.1) and are reminded that whilst CE/UKCA certification may demonstrate that the device is safe and fit for its intended purpose, a CE/UKCA certification in itself does not constitute evidence for the purposes of the rule.
In 2018, the ASA ruled on an ad for a medical device which claimed to treat mild or moderate Alzheimer’s and claimed the benefits of “improved memory, mood and overall daily living. Better language, name and face recognition. Greater independence and social interaction. Noticeable improvements in attention and focus”. The ASA found that whilst the submitted evidence included some robustly designed trials, some of which showed some encouraging results, that evidence was not sufficiently robust to support the significant claims in the ad (Neuronix Medical Ltd, 21 March 2018).
In 2018, the ASA investigated claims that the device could provide relief from knee pain including pain from strained or injured knees. Alongside the lack of evidence to demonstrate the product was CE-marked, the ASA ruled the claims were misleading because no clinical evidence was submitted to support the claims (UK Direct Shop, 11 April 2018).
Marketers are recommended to read CAP Guidance on Substantiation for health, beauty and slimming claims to find out more about the types and levels of evidence that they will likely need to support efficacy claims.
What about conditions for which medical supervision should be sought?
Claims that a device can be used to diagnose or offer treatments on conditions for which medical supervision should be sought are likely to be considered to discourage essential treatment, unless that treatment is carried out under the supervision of a suitably qualified health professional (12.2).
Marketers are therefore advised to not state or imply that a medical device can be used to diagnose or treat such medical conditions unless that diagnosis or treatment is carried out under the supervision of a suitably qualified health professional.
In 2012, the ASA ruled against an ad for ‘Blood pressure lowering system’ which stated that it was a breathing system which helped lower blood pressure. Whilst it was accepted that the ad stated it could be used alongside medication, the ASA were concerned that the ad could encourage consumers to use the device as an alternative to having a check-up or seeking advice from a suitably qualified health professional, and thereby discourage or delay essential medical treatment for a serious medical condition (Lloyds Pharmacy Ltd, 4 July 2012).
In 2017, the ASA ruled against a website which made claims that a device could be used to treat chronic obstructive pulmonary disease (COPD). The ASA considered that COPD was a condition for which medical supervision should be sought. The ASA considered that by marketing the product as a treatment for COPD, the ad discouraged essential treatment because the treatment offered by the product did not take place under the supervision of a suitably qualified health professional (Biolife Solutions Ltd, 30 August 2017).
This Guidance on referencing medical conditions explains in more detail the types of conditions that will need to be supported by clinical evidence, and the type that should only be referenced in ads where the treatment is being carried out under the supervision of a suitably qualified health professional.