Who: The Advertising Standards Authority (ASA), The Medicines and Healthcare Products Regulatory Agency (MHRA), the Proprietary Association of Great Britain (PAGB), Clearcast (Clearcast), and infirst Healthcare Ltd t/a Flarin (Flarin)
Where: United Kingdom
When: 12 February 2020
Law stated as at: 27 February 2020
What happened:
The ASA launched an investigation into a TV ad for Flarin’s soft capsules product. The ad’s voice-over stated “Flarin is different. For joint pain, no other ibuprofen has been proven to be more effective. And Flarin’s unique lipid formulation also helps shield your stomach from damage…”.
In tandem with the voiceover, a package of the Flarin product appeared on the screen with the text “UNIQUE LIPID FORMULATION” and, separately, “NO OTHER IBUPROFEN IS MORE EFFECTIVE FOR JOINT PAIN” with the “MORE EFFECTIVE” text shown in red and the rest shown in blue. This was then followed by on-screen text stating “HELPS SHIELD YOUR STOMACH FROM DAMAGE…”
The MHRA complained whether the ad implied that the reason Flarin was “different” was due to the effectiveness in alleviating joint paint rather than its unique formulation, in light of the juxtaposition of the claim “Flarin is different” with the top parity claim, “No other ibuprofen has been proven to be more effective“.
(Editor note: For those that need a refresh: a top parity claim is one that amounts to a claim about being equal or joint best (examples include “unbeatable taste” and “you won’t find the same deal for less”); and a superlative claim is one that claims to be superior to others (examples include “the best”, “most customers” and “highest rated”.)
Flarin argued that the ad was intended to communicate that the product was different due to its unique formulation, and did not claim to be superior in effectiveness. It said that the claim that “No other ibuprofen has been proven to be more effective for joint pain” was clearly a top parity claim – there was no suggestion of superiority, only that it was just as effective as other ibuprofen products.
Clearcast, who cleared the ad for broadcast, were satisfied that the claim “Flarin is different” was substantiated and that its connection to the product’s “unique lipid formulation” was clear. They also did not think the ad implied that the product was superior in effectiveness because “no other ibuprofen is more effective for joint pain” was an express top parity claim. PAGB similarly echoed Clearcast’s opinion.
Flarin also provided to the ASA the results of consumer research in which 20 people were asked to view the ad and asked “Is Flarin different to other pain-relieving products and if so how?” Three responses were recorded and none suggested that the ad implied that the product was different because it was more effective for pain relief than other ibuprofen products.
The ASA ruled that, although the “NO OTHER IBUPROFEN IS MORE EFFECTIVE FOR JOINT PAIN” claim is a top parity claim when taken as a standalone statement, the way it was presented in the ad (for example, it was directly preceded by the “Flarin is different” claim and the words “more effective” were emphasised over the other text in the claim) meant it was likely to be interpreted as a superlative claim. The ASA also felt that the consumer research evidence was insufficient, given the size of the response group in Flarin’s consumer research and the nature of the responses. The ASA upheld MHRA’s complaint on the basis that the ad implied that Flarin was superior to other ibuprofen products and was therefore misleading.
Why this matters:
Advertisers should take care in the presentation and context of top parity claims, as this ruling shows that even express and clear top parity claims may be perceived by the ASA as superlative claims in certain situations. In particular, advertisers should always read all of the claims made in any ad together to ensure that the intended messaging is clear and cannot confuse consumers.
Additionally, advertisers who wish to rely on consumer research to defend their positions should be aware that the ASA is likely to find such research unpersuasive unless it is relatively robust –for example, the research should include adequate sample sizes and receives thorough responses.
