Ad description
A sponsored search ad on Google for Superdrug, stated "Superdrug - Erection Help www.superdrug.com/Erection-Help Up To 76% Cheaper Than Competitors. Rise Up To Erection Problems!".
Issue
Pharmacy2U challenged whether the ad promoted prescription-only medicines (POMs) to the public.
Response
Superdrug Stores plc stated that the Superdrug Online Doctor was operated by a company who were practitioners in the field of online diagnosis and treatment services.
Superdrug said that the ad did not promote POMs because it did not mention any POMs that could treat erectile dysfunction (ED). Furthermore, there was no explicit description of any POMs or any reference to the categories of treatment available. Superdrug believed that the ad was promoting the medical services that were offered by the Superdrug Online Doctor, i.e. the ED advice and treatment service.
Superdrug stated that, after clicking on the ad, consumers would engage with the Superdrug Online Doctor for advice regarding ED and treatments that might be available to them. The process required patients to complete an online questionnaire, which would then be assessed by one of the online doctors, who might: prescribe an appropriate POM, refuse to supply a POM, or ask the consumer for more medical information in order to make a decision about whether they should receive a POM as part of their treatment. They said there was no guarantee that a customer would be prescribed a POM. If, however, a decision was made by the doctor to prescribe a POM, all remote prescribing was done in accordance with the Care Quality Commission's guidelines.
Superdrug stated that as part of their services for treating ED, the Online Doctor had always provided advice about possible treatments other than POMs, which was tailored to the individual. The advice given referred to the possible use of other medication and vacuum devices, although they were currently not directly supplied by Superdrug. Advice on lifestyle changes, such as exercise, and information on the causes of ED and recommendations for further investigations and examinations, so as to promote the discovery and treatment of underlying issues was also included as part of Superdrug's ED treatment. Depending on the individual's circumstances, advice might also be provided about controlling diabetes or giving up smoking, which might assist with ED. Superdrug stated that their ED treatments did not always include a POM, as they were not suitable for everyone and some patients opted not to have that type of treatment. In such cases, their ED treatment comprised of the above advice which was provided without any charge to the consumer.
In September 2014, Superdrug introduced the option of a more in-depth telephone consultation with one of its doctors, which, like their POM treatment, was a chargeable service. This gave patients an opportunity to discuss their ED and if appropriate, they were offered a counselling service. Following the consultation, each patient was sent a personalised ED Plan which included: recommendations for further investigations and examinations, lifestyle advice, recommendations and support for psychological issues and advice, e.g. partner support and suggestions for possible medical treatments (both POM and non-prescription) if suitable.
Superdrug said they ensured the online doctor and any pay-per-click (PPC) activity was compliant with the MHRA's guidance for consumer websites offering medicinal treatment services. They said they were allowed to promote their service provided they did not refer to any specific POMs. Furthermore, Superdrug stated that in respect of sponsored links (e.g. PPC), the guidance stated that "The text may promote the service provided but should not mention specific prescription only medicines". Superdrug stated that the ad clearly promoted their ED advice and treatment service, but did not promote any specific POMs and therefore was compliant with the MHRA guidance and CAP Code.
Superdrug referred to the MHRA guidance on how marketers should ensure that their website content did not promote POMs. They stated that the guidance allowed marketers to feature indicative prices for the treatment of a particular medical condition on their website home page, which was the page the MHRA primarily focused on when reviewing a marketer's website. Although Superdrug acknowledged that this aspect of the guidance was directed to website home pages, they considered it illustrated that indicative comparative pricing for ED treatments was permissible, entitling them to make the savings claim of "up to 76%" in the ad. Furthermore, they considered that a comparative price claim was less likely than indicative pricing for consumers to make a decision between therapeutic products for ED based on price. They considered that consumers were given information that would assist them in making an informed decision between different providers offering ED treatments, but would not be given information which compared (or allowed the consumer to easily compare) the price of the various therapeutic products.
Superdrug provided data that compared the price for a variety of Viagra products (by tablet and size) they sold against five of their competitors. The price comparisons were initially conducted in January 2014 and again in July, which included comparisons with four additional competitors. The data from both months showed the largest amount of savings consumers could make on the various Viagra products, ranging from 53% to 76%. However, they stated that the savings claim was based on price comparisons that took into account all the charges that online medical services made for ED treatment and not just the cost of a pack of Viagra. They stated that the applicable charges which resulted in the issuing of a private prescription included the online consultation, advice, dispensing, the medication and postage.
Assessment
Upheld
We acknowledged that as part of Superdrug's services for treating ED, advice about possible treatments other than POMs was included, as well as practical and general advice. We noted that Superdrug's ED treatment did not always include a POM and that in such cases the treatment comprised of advice relating to lifestyle changes, information on the causes of ED, alternative treatments and recommendations for further investigations.
We also acknowledged that Superdrug's ED treatment offered the option of an in-depth telephone consultation with one of its doctors at a cost to the consumer, which, if appropriate, included a counselling service. Following the telephone consultation, each patient was sent a personalised ED Plan that included advice on discovering the cause of ED, seeking support and available treatments. However, we noted that this particular option was not available under Superdrug's services for treating ED at the time the ad was shown.
We acknowledged in Superdrug's response that the savings claim was based on a price comparison that took into account all the applicable charges made by other online providers offering an ED treatment service, including the cost of a POM. Although the ad did not name any of the POMs that could treat ED, we considered that the claim "Erection-Help Up To 76% Cheaper Than Competitors", promoted at least one specific product available to purchase through Superdrug for treating ED. It was our understanding that at the time the ad was shown, the only treatment option offered through Superdrug's ED service that resulted in a charge to consumers was the purchase of a POM, which took into account the cost of the medication itself, as well as other charges for the services provided that resulted in the issuing of a private prescription.
We acknowledged that it might be acceptable for advertisers to show indicative prices for a particular medical condition on their website home page. However, the ad under investigation was a short sponsored search ad, which we considered made a prominent point regarding a savings claim.
We acknowledged that products could not be purchased without the completion of the consultation, which included advice about possible treatments other than POMs. However, we considered that the savings claim clearly related to Superdrug's POM treatment, because it was the only available option at the time on which consumers would achieve the saving to which the ad referred. While its price accounted for the cost of the consultation and advice, it was nevertheless ultimately a POM treatment for ED. For that reason, we considered that the ad focused on the availability of POM treatments at lower prices than elsewhere, as opposed to presenting POMs as a potential outcome of the consultation process alongside other options for treatment, as may be acceptable on the home page of an advertiser's website.
Therefore, we concluded that the ad's implied reference to Superdrug's products for treating ED along with the savings claim indirectly promoted POMs and therefore, breached the Code.
The ad breached CAP Code rule 12.12 12.12 Prescription-only medicines or prescription-only medical treatments may not be advertised to the public. (Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told Superdrug Stores plc that their future advertising for treating ED must not directly or indirectly promote POMs.
