Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
Ad description
A radio ad for Lemsip, heard on 2 November 2018, featured the claim "When cold, flu, and chesty cough strikes, keep Lemsip Max All-in-One by your side; there's nothing faster or stronger".
Issue
The complainant challenged whether the:
1. claim “there’s nothing faster or stronger” was misleading and could be substantiated; and
2. ad contained sufficient information for listeners to verify the same claim.
Response
1. RB UK Commercial Ltd (RB UK) said there were no products on the UK market targeted at the symptoms of cold, flu, and chesty cough that contained more paracetamol, phenylephrine hydrochloride or guaifenesin per dose than Lemsip Max All-in-One. They said their product contained the maximum permitted amount per dose of each of those ingredients. They had carried out a literature search specifically looking for products that treated cold, flu, and chesty coughs and had not found any studies pertaining to products that were stronger and/or faster. On that basis, they felt that the claim “there's nothing faster or stronger” had been substantiated.
RB UK also said the claim made in the ad had been approved by the Proprietary Association of Great Britain (PAGB) and provided evidence and a statement from PAGB which highlighted the same points raised by RB UK.
A medical advisor at the PAGB stated that, in their view, the findings of the literature search supported the validity of the claim “there’s nothing faster…”. They referred to the comparative advertising section of the PAGB Code on Advertising Practice, which provided further detail regarding the standard of evidence advised when making comparative claims.
Radiocentre provided RB UK’s evidence to them for the “nothing faster or stronger” claim, which they were satisfied was adequate substantiation. They also said they regarded the claim as a top parity one.
2. RB UK said, in accordance with Human Medicines Regulation 2012 Regulation 287(1)(b), the ad had not made a comparison with an identifiable product. They believed “there's nothing faster or stronger” was a top parity claim rather than a claim comparing the product’s strength and speed to other products on the market. Since the claim was not a comparison against other identifiable competitors’ products, they maintained no verification information was necessary.
RB UK stated the PAGB also supported their assertion that this was a top parity claim so no verification information was needed.
Assessment
1. Not upheld
The ASA noted that the guidance document produced by the Medicines and Healthcare Regulatory Authority (MHRA) titled Blue Guide: advertising and promotion of medicines in the UK (Blue Guide) stated that “Comparative claims for a medicine against another named product such as ‘works faster than XXX’ are prohibited … Claims which suggest a product is as good as the best such as ‘nothing acts faster than ...’ are not prohibited under the legislation but care should be taken that consumers are not misled as to the benefits of the medicine in comparison to other products in the category”.
We considered that listeners would understand the claim “there’s nothing faster or stronger” to mean that the formulation of Lemsip Max All-in-One was such that there were no other similar products on the market that contained more active ingredients or that alleviated the symptoms of cold, flu, and chesty cough more quickly.
The product contained the maximum permitted levels of each of the active ingredients – paracetamol, phenylephrine hydrochloride, and guaifenesin – which we understood were typically used in treating the symptoms of cold, flu, and chesty cough. While we recognised other products on the market might have different combinations of the active ingredients, we considered listeners were unlikely to be misled by the claim “there’s nothing … stronger”.
We understood RB UK had conducted a literature search for clinical trials that involved the treatment of cold, flu, and chesty cough symptoms with the same combination of active ingredients and had found no articles comparing the speed of action of different products.
We noted the section of the PAGB Code on Advertising Practice (the PAGB Code) that related to comparative advertising, which had been referenced in the PAGB medical advisor’s evidence, and which stated that “top parity claims” were only acceptable when substantiated with positive evidence, which typically consisted of comparative studies or meta-analysis. That was consistent with the standard of evidence we would typically expect to see as substantiation for such claims. However, the PAGB Code also indicated top parity claims may be acceptable where studies had been carried out that showed no other product within the same therapeutic category was superior to the one advertised.
We acknowledged that the PAGB Code also recognised that “there may be occasions when … the pharmacological properties are sufficient to determine whether or not a claim is acceptable”. We understood the PAGB considered the pharmacological properties of Lemsip and the relevant comparator products were sufficiently similar to support the specific claim that no product worked faster than Lemsip. We therefore considered that in those specific circumstances – where the competing products were sufficiently pharmacologically similar and where there was no evidence to suggest one acted more quickly than another – the claim did not require positive evidence in order to be substantiated and was unlikely to mislead.
On that point, we investigated the ad under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 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) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors), but did not find a breach.
2. Upheld
As noted above, the Blue Guide stated that comparative claims for a medicine against another named product were prohibited under the relevant legislation (the Human Medicines Regulation 2012 Regulation 287(1)(b)), whereas claims which suggested a product was as good as the best were not prohibited. While such claims were not prohibited, the BCAP Code required that comparisons with identifiable competitors were verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors – either explicitly or implicitly – needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so. We considered that the claim “there’s nothing faster or stronger” clearly compared the performance of Lemsip Max All-in-One with other products on the market that were intended for the same purpose and that the claim therefore needed to be verifiable.
The ad did not include, or direct listeners to, information to allow them to understand the comparison, or to check the claim was accurate. For that reason, we concluded the comparative claim “there’s nothing faster or stronger” was not verifiable.
On that point, the ad breached BCAP Code rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with identifiable competitors).
Action
The ad must not be broadcast again in its current form. We told RB UK Commercial Ltd to ensure comparisons with identifiable competitors were verifiable in future.
