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.

BREXIT - The CAP and BCAP Codes include many rules which seek to reflect significant pieces of EU law or UK law that has been made to implement EU law. As far as CAP is aware, the same rules and laws will apply on the day after exit as on the day before. This CAP News Article explains the position further.

Viagra is a trademarked brand name for a specific product used to treat erectile dysfunction, but other brands are available, including Cialis, Levitra and Spedra.  With the exception of ‘Viagra Connect’, these products are prescription-only medicines and as such, must not be advertised to the public.

Don’t advertise Viagra to the public

Viagra is a prescription-only medicine (POM) and as such, cannot be advertised to the public (rule 12.12). The ASA considers almost all references to Viagra, or other prescription-only medicines for the treatment of erectile dysfunction, a breach of rule 12.12.

The Medicines and Healthcare products Regulatory Agency (MHRA) has successfully prosecuted marketers for the illegal sale and supply of Viagra. The MHRA has also taken action against suppliers that have presented their products as an alternative to Viagra, considering those products medicinal by presentation.

Viagra should be distinguished from Viagra Connect, which is not a POM and is a pharmacy medicine. See below for further information. 
 

Avoid indirect promotion

Marketers should take care to ensure they don’t promote POMs indirectly, including by making general references to “treatments” if the only ones they offer are POMs.

The ASA ruled that a sponsored search ad which stated "Superdrug - Erection Help” and “Up To 76% Cheaper Than Competitors. Rise Up To Erection Problems!" indirectly promoted a POM. They considered the savings claim clearly related to a POM because at the time, the only available option with which consumers would achieve the saving referenced in the ad was to purchase a POM (Superdrug stores plc, 11 February 2015).
 

Promote the consultation, rather than the product

There are some exceptions for online pharmacies and references to a POM in some areas of an online pharmacy’s website may be considered acceptable, in some instances.

Marketers must ensure that the focus of the ad is on the promotion of a consultation, rather than any associated POM. The POM should only presented in the context of promoting a consultation where a range of therapeutic options will be discussed, where the POM is just one of several possible treatment options. Marketers offering Viagra may, for example, feature the claim “a consultation to discuss possible treatments for erectile dysfunction”.

No reference to a POM should appear in an initial ad, for example on a website’s home page, in a sponsored ad, logos, testimonials or ‘hover’ text. In addition to this, any small print at the bottom of a home page should not refer to POMs or link directly to a page where they are referenced. Marketers should ensure that the casually browsing consumer does not come across information relating to POMs with ease.

The ASA ruled that sponsored search ads for an online pharmacy stating “Lowest Price Guaranteed”, “free consultation and prescription”, “Buy Erection Pills Online”, “4x100mg from only £19.99" and “Generic Pills Available” promoted POMs to the public. The ASA considered that these claims went beyond presenting balanced and factual information about a POM in the context of a consultation during which a range of treatments options would be discussed (Express Pharmacy Consultations Ltd, 27 November 2013).
 

Take care when including price lists

Marketers’ websites may feature a price list with a range of available treatments, including Viagra, provided the price list does not include product claims or encourage viewers to choose a POM over non-POM alternatives based on the price.
 

Don’t confuse between POMs and herbals

When promoting herbal pills, marketers should avoid referring to well-known features of Viagra, for example pills being blue or diamond-shaped, especially if the product concerned is marketed in the context of sexual activity or performance. Both CAP and the ASA are likely to interpret this approach as implying the product is Viagra, or an alternative POM, therefore breaching the Code.

Marketing communications for herbal pills must not contain any direct or implied efficacy claims and should make clear that the product is herbal. Marketers should ensure that their products do not contain medicinal herbs and should seek clarification from the MHRA if in doubt.

Ensure claims about Viagra Connect don't breach the Code

In November 2017, the MHRA re-classified Viagra Connect from a prescription-only medicine (POM) to a pharmacy medicine (P), following consultation and advice from the Commission on Human Medicines.  As such, marketers may refer to this particular product in their ads, provided no element of the ad is likely to indirectly promote a POM.  As with all medicines, marketers must obtain a licence from the MHRA before selling or marketing the product in the UK and all claims about the product must conform to the licence and the product’s summary of product characteristics (SPC).

Marketers selling Viagra Connect and wanting to refer to the treatment of erectile dysfunction more generally should take care to ensure they aren’t indirectly promoting POMs.  If they sell both POM and non-POM treatments, marketers are strongly advised to ensure they advertise these in line with the above guidance, to avoid breaching rule 12.12.

See ‘Healthcare: Overview’, ‘Healthcare: Medicinal claims’ and ‘Healthcare: Prescription-only medicine’

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