Background
Summary of Council decision:
Three issues were investigated, one of which was Upheld. Two issues were informally resolved after the advertiser agreed to amend their advertising.
Ad description
A Twitter ad and two TV ads for Pharmacy2U:
a. The tweet from the Pharmacy2U Twitter account, dated 22 November 2017, stated “Did you know that 43% of us use #RepeatPrescription medicines and over 800 million are dispensed every year? Find out how you can help the #NHS save time and money #ModernHealth“. The tweet contained an embedded video by Pharmacy2U, titled “The Repeat Prescription Report. The video featured a voice-over and on-screen text stating “43% of us use repeat prescription medicines. Over £800 million are dispensed every year. Costing the NHS 8 billion pounds. And because we’re living longer, these numbers are rising causing a huge strain on the NHS. Managing repeat prescriptions online, can help relieve the strain. Saving GPs more than 6 1/2 hours a week on paperwork, and the NHS over £300 million a year on prescription costs. Only one in ten of us manage our medicines online… So maybe it’s time to go online. It could be better for you, and better for the NHS.” The video ended with on-screen text stating “Pharmacy2U Your prescriptions, taken care of”.
b. A TV ad, seen in early December 2017, featured a voice-over stating “Over 40% of us use repeat prescription medicines. Over £800 million are dispensed every year. Costing the NHS over 7 billion pounds. And because we’re living longer, these numbers are rising causing a huge strain on the NHS. Managing repeat prescriptions online could help relieve the strain. Saving GPs on average more than six and a half hours per week on paperwork, and the NHS over £300 million a year on prescription costs. Only one in ten of us manage our medicines online... So maybe it’s time to go online. It could be better for you, and better for the NHS.” On-screen text stating “Pharmacy2U survey sample 1,000” appeared during the voice-over’s statement about three and a half hours per month. The ad ended with on-screen text stating “Pharmacy2U Your prescriptions, taken care of Register at pharmacy2u.co.uk/nhs”.
c. The second TV ad, seen in early December 2017, featured a voice-over stating “Over 40% of us use repeat prescription medicines but only one in ten of us manage our medicines online… we could be getting medicines delivered to our door for free. Saving the NHS over £300 million a year on prescription costs. So maybe it’s time to go online. It could be better for you, and better for the NHS.” On-screen text stating “Pharmacy2U survey sample 1,000” appeared during the voice-over’s statement about three and a half hours per month. The ad ended with on-screen text stating “Pharmacy2U Your prescriptions, taken care of Register at pharmacy2u.co.uk/nhs”.
Issue
The National Pharmacy Association (NPA) and 24 complainants who were members of the public, challenged whether the claims that managing repeat prescriptions online could save the NHS “over £300 million a year on prescription costs” and was therefore “better for the NHS” were misleading and could be substantiated.
Response
Pharmacy2U said that saving the NHS money was better for the NHS, and there were well reported concerns over funding issues in the NHS. They said they had previously submitted a request to the NHS to approve their distribution of a direct mail, which included the statement “Most of the time, it’s cheaper for the NHS to partner with Pharmacy2U, so we save the NHS money”. They said they had substantiated that claim to the NHS with a calculation using publicly available information from the Pharmaceutical Services Negotiating Committee (PSNC), which projected an annual saving if all pharmacies charged the NHS the same rate as Pharmacy2U. They said on that basis the NHS had approved the use of that claim in their marketing in August 2017. Pharmacy2U provided the calculation and their correspondence with the NHS in which approval was granted.
Pharmacy2U also provided an updated version of that calculation dated October 2017 in support of the savings claim in the ad. It made a comparison of the cost per item to the NHS for prescriptions dispensed between ‘average’ pharmacies and Pharmacy2U, and concluded that the cost per item was lower for Pharmacy2U. That was based on the fees that pharmacies charged the NHS, using the latest PSNC ‘average’ pharmacy data from July 2017. Pharmacy2U used data relating to the total number of prescription items dispensed in the UK in July 2017 to calculate the monthly saving if all pharmacies were paid the same rate as them. The spreadsheet projected an annual saving of over £300 million, based on that monthly saving, if all pharmacies were paid their rate.
Pharmacy2U said the NHS made savings when buying medicines through Pharmacy2U because their remuneration was based on being a single premise pharmacy. They explained that some of the fees and income streams referenced in the calculation were based on the number of physical premises through which pharmacies operated, rather than the total volume of medicines dispensed or the overall size of the pharmacy as a corporate entity.
In support of the calculation being based on data from July 2017 only, Pharmacy2U provided a breakdown of the volume of pharmaceutical items that were dispensed by the NHS each month from January 2017 to January 2018, to demonstrate that dispensing levels remained relatively consistent throughout the year and were not affected by seasonality. They said that approximately 80% of prescription items were repeat prescriptions for chronic illnesses which did not vary by the time of year.
Additionally, Pharmacy2U provided a statement form an individual dated May 2018 who was previously in a senior leadership role within the Department of Health and was currently an advisory consultant for clients including Pharmacy2U. They had reviewed the calculation provided to the ASA and said that, assuming all the base data was correct, they supported the projection that savings to the NHS would be in excess of £300 million per year if all pharmacies dispensed at the same rate as Pharmacy2U.
Clearcast said their approval was based on that projected annual saving of over £300 million. They said they understood that Pharmacy2U charged a lower rate to the NHS compared to the average pharmacy. Clearcast said they received an assurance from the agency that the claims and figures provided were based on the latest reimbursement rules, using official PSNC estimates and statistics and had been approved by the NHS for use in their marketing materials. They said from the evidence provided and the assurance received they were content to approve the projected savings claim, and they considered that the use of ‘could’ in that context did not make the £300 million claim absolute. They were further satisfied that any savings that were made by the NHS would be “better for the NHS”, and noted that that viewpoint had already been accepted by the NHS.
Assessment
Upheld
The ASA considered that consumers would be likely to interpret the references to savings of “over £300 million a year” in the ads to mean it was currently realistic that the NHS would save £300 million or more if a significant proportion of the population switched from paper to online repeat prescription services, as provided by Pharmacy2U or other pharmacies offering online repeat prescription services. The statement “it’s time to go online” in the ads was followed by the claim “better for the NHS”, and we considered that consumers would therefore see that claim as relating to the £300 million savings claim. We also considered that most consumers who saw the ads were unlikely to be familiar with the service offering of Pharmacy2U, and its relationship with the NHS, and they would view the ads in that context. We therefore assessed whether the evidence was sufficient to substantiate the claims as they would be understood by consumers, including whether the scenario was currently realistic.
We understood that patients could register online with Pharmacy2U and that their repeat prescriptions could be ordered on their behalf and delivered by the third party pharmacy. In support of the savings claim, Pharmacy2U had provided a calculation which projected an annual saving of over £300 million if all pharmacies charged the NHS the same rate as Pharmacy2U to dispense pharmaceutical items. We acknowledged that based on those costings Pharmcacy2U had the capacity to save the NHS money, due to being based in a single premises. We also noted that the NHS had previously approved a Pharmacy2U claim stating “Most of the time, it’s cheaper for the NHS to partner with Pharmacy2U, so we save the NHS money”, based on a similar calculation. However, that claim was much less specific than the £300 million claim in the ads.
Although we recognised that the UK healthcare sector was undergoing change and that online repeat prescription services had the capacity to save the NHS money, we considered that Pharmacy2U’s calculation, based on the annual savings if all pharmacies were paid the same rate as Pharmacy2U, was not currently a realistic or likely scenario. In particular, the overwhelming majority (99%) of NHS prescriptions were still dispensed by high street pharmacies. Pharmacy2U’s projected annual savings was based on a wholly different scenario whereby the NHS paid all other pharmacies the same rate as Pharmacy2U, and we considered that scenario would be dependent on a large number of factors and changes taking place in the UK. We therefore considered that the projection was different in nature to the savings claim in the ads, as it would be understood by consumers to be based on a currently realistic scenario, and did not provide adequate evidence for the specific value of the £300 million claim.
For those reasons, we did not consider that Pharmacy2U had substantiated that the NHS would currently save £300 million per year or more, if a significant proportion of the population switched from paper to online repeat prescription services such as theirs. We therefore concluded that the claims “Saving… the NHS over £300 million a year on prescription costs” and “better for the NHS” were misleading and had not been substantiated.
Ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
2).
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation), and ads (b) and (c) breached BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
2).
(Misleading advertising), and
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
Action
The ads must not appear again in their current form. We told Pharmacy2U to ensure that they held adequate substantiation for claims relating to savings generated for the NHS if people switched from paper repeat prescriptions to online repeat prescription services such as theirs.
