Ad description
A TV ad for Regaine for Men Extra Strength Scalp Solution, a hair loss treatment, seen on 1 December 2022, featured a dialogue between two animated Action Man-type figures. The scene opened with one of them in a bathroom looking at his balding head in the mirror and saying despondently to himself, “Who are you kidding, mate? No-one cheats the passage of time.” The other figure, dressed as a soldier, suddenly appeared from behind the shower curtain and said to him, “The inaction ends now! Give me a chance to ask you to give Numan a chance to give you a chance to give your hair a chance to grow again!” The other figure asked, “What’s gone can be got back?” to which he replied, “It ain’t gone until it’s gone gone – and you ain’t gone gone! Do something about hair loss at Numan.com.” On-screen text stated “Regaine For Men Extra Strength Scalp Solution 5% w/v cutaneous solution is for hereditary hair loss in men. Contains minoxidil. Always read the label”.
The soldier figure showed him a tablet device which appeared to show Numan’s website. Text on the website stated “Numan Hair Loss treatment. Clinically proven. Discreet delivery. Order now”. The soldier figure then said, “If your hair doesn’t grow back after 180 days of using Numan we’ll give you a full refund. Do something about hair loss at Numan.com.”
He then spun a wheel with three segments: “STETSON”, “CAN OF POLISH” and “FULL REFUND”. The arrow landed on “FULL REFUND”.
Further on-screen text stated “Refund if hair [sic] hasn’t stabilised/reversed in 180 days. T&Cs apply …”.
Issue
The complainant challenged whether the ad breached the Code by suggesting that the effects of Regaine For Men Extra Strength Scalp Solution were guaranteed.
Response
Vir Health Ltd t/a Numan explained that Regaine was a medicine used to treat common hereditary hair loss in men aged 18 to 65 years and contained the active ingredient minoxidil (5%). They said Clearcast had approved their evidence of clinical efficacy: a study which had found increased hair growth in the majority of participants. Numan believed it was extremely unlikely that viewers would understand from the ad that the effects were guaranteed. They considered that the wording of “Give me a chance to ask you to give Numan a chance to give your hair a chance to grow again” introduced an element of uncertainty that the treatment might or might not work on the person.
The soldier character in the ad stated, “If your hair doesn’t grow back after 180 days of using Numan we’ll give a full refund”. Numan believed that did not imply a guarantee. Rather, it purposefully used cautious words to indicate to consumers that the treatment might not work for all participants and in that case, a consumer might receive a refund. Numan pointed out that in line with BCAP Code rule 11.23, they were permitted to offer refunds.
Clearcast said after a previous version of the ad had been found by the ASA to breach the Code, they and Numan had worked together, using that ruling as a guide, to ensure that the revised ad complied with the Code. The ad was made up of two parts. The first, main part used language that made clear that the product was not suitable for all cases of hair loss; the dialogue emphasised that there was a “chance” as well as “what’s gone could be got back” and superimposed text stated the basis for the claim. “Clinically proven” appeared in the graphics only, in a section that was not linked to the refund. The second part was factual, related only to the refund, no longer pointed to effects being guaranteed and contained no efficacy claims. The setting and the characters’ clothes were different in the second part, disconnecting the refund section from the claims in the main part of the ad. Clearcast pointed out that in contrast to the previous Upheld version, the ad did not mention a guarantee, and simply stated that if users did not see results after 180 days they would get a refund. They believed the refund aspect was therefore simply factual and no longer pointed to effects being guaranteed.
Assessment
Upheld
The BCAP Code stated that no ad for a medicinal product may claim its effects were guaranteed. That did not prevent the offering of refunds, if the ad did not suggest that efficacy was guaranteed.
The ad showed a balding character being encouraged to try the product. The ASA considered that in the context of an ad for hair loss, viewers would understand from the claims “If your hair doesn’t grow back after 180 days of using Numan we’ll give a full refund” and “Clinically proven” that the product was proven to show results within 180 days. The ad did not refer to a guarantee, and we acknowledged that the repeated use of the word “chance” and the question “What’s gone could be got back?” introduced an element of uncertainty. However, we considered that by emphasising the product’s effectiveness and by presenting the offer of a refund solely on the basis of the treatment’s performance, the ad was likely to give viewers the impression that the effects of the product were proven and guaranteed and that the refund related to seeing positive effects from the product in 180 days. For those reasons, we considered that in the context of the ad, the refund was likely to be interpreted as guaranteeing the efficacy of the product and we concluded that the ad breached the Code.
The ad breached BCAP Code rule 11.23 (Medicines).
Action
The ad must not appear again in the form complained of. We told Vir Health Ltd t/a Numan not to refer to their refunds or money-back guarantees in a way that claimed or implied that efficacy of the product was guaranteed.
