Health and wellness firms making guarantees to consumers in UK advertising should consider how such promises will be interpreted. This is the main takeaway from the ASA’s latest ruling on marketing for an over-the-counter (OTC) hair regrowth drug.

A TV ad run by online healthcare company Numan – for its Regaine For Men Extra Strength Scalp Solution, which contains the active ingredient minoxidil – caught the eye of the MHRA. The regulator asked ASA to investigate whether the ad breached the UK Code of Broadcast Advertising (BCAP) by suggesting that the effects of the product were guaranteed.

The BCAP code states: “No advertisement for a medicinal product may claim its effects are guaranteed. That does not prevent the offering of refunds, if the advertisement does not suggest that efficacy is guaranteed.”

 

Voice-over claims

 

The ad in question included a voice-over, which stated: “What is gone could be got back, have hope, grow more hair. Do something about hair loss.”

The voice-over continued: “Clinically proven… Now with the Numan money back guarantee. See results in 180 days or your money back.”

On-screen text noted: “*Full refund if hair loss is not stabilised/reversed in 180 days. T&Cs apply, see [website].”

ASA received a response to the complaint on behalf of Numan from Clearcast, a non-governmental organisation owned by the major UK commercial broadcasters, which pre-approves most British TV advertising.

It pointed out that the only use of the word “guarantee” was in the context of the Numan money-back guarantee, which they said was expressly permitted by the BCAP Code.

Rejecting as “extremely unlikely” the assertion that viewers would take the ad to mean the effects of the product were being guaranteed, Clearcast said the ad used the language of possibility when referring to hair regrowth.

The wording “grow more hair” and “do something about hair loss” were general call-to-action statements, it claimed, and did not imply effects of the product were guaranteed or promised.

Clearcast argued that the phrasing of the money-back guarantee – which applied “if hair loss is not stabilised/reversed in 180 days” – indicated to consumers that the effects of the product were variable and that one of the potential outcomes was that it might not work.

 

ASA not convinced

 

Rejecting Clearcast’s defence, ASA said it considered that the overall message of the ad would lead consumers to understand the wording “clinically proven… Now with the Numan money back guarantee. See results in 180 days or your money back” to mean that the results of using the product were clinically proven and guaranteed.

Numan’s use of some cautious wording in the ad, such as “what is gone could be got back, have hope”, did not override the more definite statements that followed: “Grow more hair. Do something about hair loss.”

Ruling that, in the context of the ad, the money-back guarantee was likely to be interpreted as guaranteeing efficacy of the product, ASA told Numan it had breached the code and ordered that the commercial must not appear again in the same form.

Numan was also informed by ASA not to refer to the money-back guarantee in a way that claimed or implied that efficacy of the product was guaranteed.

Founded in 2018, London-based Numan markets treatments to conditions such as erectile dysfunction and hair loss through its website. The company also offers health diagnostic services and doctor consultations.

Numan has crossed paths with ASA previously. Last year, the regulator told the company to stop running a Google ad for its erectile dysfunction treatment service and warned it to not advertise prescription-only medicines. A 2019 ad that linked cycling to erectile dysfunction was also banned by ASA for lacking sufficient evidence to substantiate such a claim.

 

See the original article in C+D’s sister publication HBW Insight here