Digital dose: using social media and online platforms to market and sell medicines and medical products
Recent attention has focused on the relationship between social media and medical products, as healthcare professionals noted an increase in influencers marketing unlicensed versions of the weight loss drug, semaglutide (branded as Ozempic and Wegovy).
With such activity posing an acute threat to public health, it is not surprising that advertising in this space is subject to tight regulation. A recent ruling by the Advertising Standards Authority (ASA) against Hike Footwear (Hike) serves to highlight the key considerations when advertising medicines and medical products online.
What did Hike claim?
After considering a complaint, the ASA upheld that paid-for Facebook ads by Hike included medical claims for unlicensed products and disingenuous testimonials, as well as misleading money-back claims.
One of the ads featured an individual in a doctor’s coat explaining that Hike's footwear could improve foot pain and alleviate conditions such as neuropathy and arthritis. This was accompanied by text which appeared to be a customer testimonial supporting that the footwear had eased their symptoms.
Another ad included the following text: "DOCTOR-RECOMMENDED SOLUTION FOR PLANTAR FASCIITIS … Reduced pressure points … Strengthens Foot Muscles … Natural Foot Movement" as well as "Barefoot shoes for better health".
Why were Hike's ads problematic?
In the UK, the rules on advertising are underpinned by a combination of legislation and self-regulated codes. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) is the applicable code in most online and social media advertising contexts, for example, in cases of paid-for online adverts, online promotions and in-game adverts.
Alongside the general rules, section 12 of the CAP Code (Medicines, medical devices, health-related products and beauty products) sets out specific principles that must be adhered to when promoting medicines or medical products, including:
- You must back up any objective claims with evidence, such as results from clinical trials
- You can only make medical claims for medicines or medical products which are properly licensed (and medical devices must have the correct conformity marking)
- You cannot publicly advertise prescription-only medicines or treatments
- You should not make claims that a medicine can guarantee a result or is as good or better than other medical products
- You should encourage consumers to seek independent medical advice before undergoing significant treatments, including cosmetic surgery
It was found that Hike had breached rule 12.1 of the CAP Code because the products shown in the ad had not been registered with the MHRA, as required when medicinal or medical claims or indications are made. In addition, it was concluded that Hike was in breach of CAP Code rules 3.1 (Misleading advertising) and 3.45 (Endorsements and testimonials) as it was unable to provide evidence to confirm that the testimonials in its ads were genuine.
In terms of action, the ASA told Hike that the ads could not be used in their current form. The ASA also stressed that:
- Future ads must not offer a 100% money-back guarantee unless Hike honored all valid refund requests
- Hike must not make medical claims unless the relevant products are registered with the MHRA and had the appropriate conformity marking
- Hike must not imply that testimonials are genuine if they aren't
What precautions should be taken?
Given the recent media and public interest in the sales and marketing of medical products via social media, it is likely that the ASA will be closely monitoring activity in this area. Those involved in marketing in the pharmaceuticals and life sciences sector should therefore revisit relevant legislation, the advertising codes (particularly section 12 of the CAP Code) and the ABPI's Code of Practice to ensure that all ads are compliant.
We may be accustomed to seeing TV doctors on our screens and "health influencers" on our feeds, but marketing teams should be particularly wary of using influencers to market and endorse medicines. In this case, Hike had used an individual in a doctor's coat to give legitimacy to their claims that the footwear could alleviate medical conditions. As a general rule, you should be careful when stating or implying that health professionals have assisted with the discovery or development of your products or have endorsed them. Exaggerations or over-claims may place ads in breach of the CAP Code, particularly the rules set out in section 3 (Misleading advertising).
In relation to medicines, section 12 of the CAP Code builds on medicines advertising rules in the Human Medicines Regulation 2012 (HMRs). The HMRs have tightly defined rules governing the supply of unlicensed medicines. The ASA often works closely with the MHRA, which also has a significant role in enforcing medicines advertising rules. In short, getting it wrong might mean difficult discussions with both the ASA and the MHRA, as well as relevant industry associations.