Roundup of ASA guidance on advertising responsibly in relation to COVID-19

Retailers seeking to reference the Covid-19 pandemic in their advertising should be aware of the Advertising Standards Authority’s (ASA) recent guidance and robust enforcement activity in this area.

The ASA has published guidance on advertising responsibly in relation to the COVID-19 pandemic and published separate advice online in relation to advertising hand sanitiser and face masks. This new guidance is hot on the heels of several upheld COVID-19 related complaints, and two industry-wide COVID-related Enforcement Notices issued in conjunction with the Medicines & Healthcare Products Regulatory Agency (MHRA).

Why does it matter?

With the pandemic at the forefront of consumers’ minds at present, many retailers have incorporated COVID-related messaging into their creatives. Some retailers have also recently taken to selling products including hand sanitiser and face masks alongside their usual product lines. 

The ASA’s guidance warns that:

• those advertising such products should be wary of making claims in relation to preventing, treating or curing COVID-19. Such claims are likely to be considered “medicinal claims” and medicinal claims are only permitted in relation to licensed medicines or appropriately marked medicinal devices, and 
• claims relating to alternative and complementary therapies should not be made unless there is robust clinical evidence to support them, something that advertisers are highly unlikely to possess at this stage of the pandemic. 

By way of example, retailers should show great caution before stating that hand sanitiser “kills COVID-19” as this may suggest that the product can be used to treat or prevent the infection. However, more general antibacterial or antimicrobial claims (which do not include references to a named pathogen) are less risky, providing they adhere to HSE guidance on such claims.

Other areas of caution include food and supplements which allege to help protect consumers from COVID-19, for example, by boosting the immune system. Such products can only make claims which are permitted to be made according to the EU Register of nutrition and health claims and, in any case, food and food supplements cannot make claims that they are able to prevent, treat or cure human disease. Even indirect or implied claims to helping to treat or protect against COVID-19 are likely to be caught, noting that in the Enforcement Notice concerning the advertising of Vitamin Shots the ASA confirmed that it would be taking a broad approach with these types of claims. 

Finally, the ASA warns against advertisers appealing to fear or distress. Ads should avoid exaggerating the risks caused if an individual does not purchase a certain product. However, the ASA notes that an appeal to fear in order to encourage “prudent behaviour” or to discourage “dangerous or ill-advised” actions may be considered justifiable, provided it is not excessive.

 

What action should I consider?

Whilst the guidance and advice is perhaps particularly pertinent to retailers selling items such as hand sanitiser, cleaning products and face masks, marketers of all products and services should be extremely wary before referencing the pandemic in their advertising. In particular, retailers should be wary of: (1) making any direct or implied claims about a products’ ability to prevent, diagnose, treat or cure Covid-19; (2) offering advice on the diagnosis or treatment of Covid-19; and, (3) appealing to shoppers’ fear or distress in ads. Given the clear public health implications at stake here, it is unsurprising that the ASA has issued a stern warning that it is “unlikely to have any patience for marketeers seeking to unfairly exploit the outbreak”.