This week we see the ASA take on the beauty industry by upholding challenges against misleading claims for teeth whitening products and ensuring that prescription-only products such as botox are not advertised incorrectly. We also see the ASA ensure that medicinal products and devices making claims for menopause products hold appropriate authorisation. 

Concealing stains or the truth about teeth whitening products? - ASA Ruling on HiSmile

What was complained about? Two social media ads for a teeth whitening product promoted how quickly stains could be removed on application, claiming the product “cancels stains in 30 seconds”, “instantly conceal those stains” and that “yellow stains melt away upon application”. One of the ads showed the product being applied and whiter teeth  revealed instantly after the product was washed away. The ads were challenged for misleadingly exaggerating the capability and performance of the product. 

What was the ruling? Upheld. The ASA considered that consumers would understand the product to remove stains immediately, with effects remaining after eating and drinking, and such claims required sufficient substantiation. HiSmile provided evidence regarding a study conducted by its scientific advisor. These sources were inadequate to substantiate the claims made because: (i) although HiSmile suggested that the study was independent, the scientific advisor used for the study had been involved in the development of the product; (ii) the study only reported the results of three tests, two of which were conducted on the scientific advisor himself; and (iii) one “after” image provided still showed considerable yellow staining. In addition, (a) one study did not refer specifically to the product advertised; and (b) two other studies contained findings in regard to dyes not used in the advertised product. The ads were also misleading because they gave the impression that the claimed whitening effects would work on individuals who did not have previous conventional whitening treatments, however the product packaging stated otherwise. 

What are the ramifications? Evidence provided to the ASA must sufficiently substantiate claims made about products. The ASA will look to a variety of factors regarding the contents of the studies including whether there is a control group and what products are tested (and as in this case, who the tests are performed on, and whether any claims about the independence of a study are substantiated).

The rules for booking Botox - ASA ruling on Dr Bunny Aesthetics

What was complained about? Dr Bunny Aesthetics used Fresha, an online booking service platform, to advertise their “Anti Wrinkle/Botulinum Toxin” treatments “from £50”. The Joint Council for Cosmetic Practitioners (JCCP) complained to the ASA, questioning whether (a) the ad breached the CAP Code by advertising a prescription-only medicine (“POM”) and (b) the name  “Dr Bunny Aesthetics” was misleading.

What was the ruling?  Upheld.  (1) POMs: The ASA found that the advertisement breached advertising codes because it promoted “Botulinum Toxin”, describing it as an "anti-ageing" and "anti-wrinkle" treatment. The ASA determined that these terms directly referred to a POM, and advertised it to the public, which is prohibited under rule 12.12 of the CAP Code. (2) Misleading Use of the Title "Dr": The title "Dr" implied a medical qualification, but the clinic was not owned or operated by a medically qualified individual. 

What are the ramifications?  The ad explicitly mentioned a POM (specifically “Botulinum Toxin”) which are prohibited from being advertised directly to the public. Clinics offering Botox treatments may instead be able to advertise their consultations, provided their reference is not to the POM itself (ie Botox) but is instead representative of the licence for that POM (e.g. “the treatment wrinkles” may be acceptable).  Advertisers must be cautious, especially in the healthcare sector, where meanings of words such as “Dr” will be taken literally by consumers, and as such must not be misleading.

ASA says “no” and puts a pause on unauthorised menopause claims - ASA ruling against GKOnlineCo Pty Ltd

What was complained about? An ad for a “VolcanicX" bracelet and peppermint oil (that was applied to the bracelet) included statements that it relieved menopause symptoms, specifically: “I relieved my meno-bloat in 48 hours” and “fast bloating relief & appetite control”. The ASA challenged whether the ad made medicinal or medical claims for an unlicensed product.

What was the ruling? Upheld. Although menopause itself is not a medical condition, the ASA considered that claims for the treatment of its “adverse symptoms" were medicinal or medical claims. Thus, the bracelet was concluded to be a medical device and the oil was considered to be a medicinal product. As such claims could not be made for these products because: (i) the oil was not licenced as a medicinal product; and (ii) the bracelet was not registered with the appropriate regulatory agency (the Medicines and Healthcare products Regulatory Agency, MHRA) nor did it have appropriate conformity marking. 

What are the ramifications? the ASA continues to ensure that any claims made, or any medicinal products and devices, hold appropriate authorisation prior to being advertised. The ASA has noted its continuing work stream on investigating ads making claims about the treatment of symptoms of menopause. In 2021, the ASA ruled against an ad which made a health claim on treating menopause symptoms which was not authorised on the appropriate register.