Who: The Advertising Standards Authority (ASA), The Medicines and Healthcare products Regulatory Agency (MHRA), Skincodes Aesthetics (Skincodes), Lucy Isabella Beauty & Aesthetics (Lucy Isabella), Sarean Aesthetics (Sarean), the Skin Clinic Faversham (Skin Clinic) and Elite Aesthetic Clinic Limited (Elite Aesthetic Clinic).
Where: United Kingdom
When: 11 August 2022
Law stated as at: 7 September 2022
What happened:
In August 2022, the ASA issued an Enforcement Notice, joint branded with the MHRA, about the advertising on social media of Kenalog injections, a prescription-only medicine, as a treatment for hay-fever. Kenalog is not licensed in the UK for the treatment of hay fever.
The Enforcement Notice follows a series of rulings made by the ASA against Skincode, Lucy Isabella, Sarean, Skin Clinic and Elite Aesthetic banning ads promoting Kenalog injections. In each ruling the ASA found that the ad in question clearly breached rule 12.12 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) (Medicines, medical devices, health-related products and beauty products) which provides that “Prescription-only medicines or prescription-only medical treatment may not be advertised to the public“. While the aforementioned ads were promoted on social media (nominally on the social media accounts of each of the above-mentioned health clinics), the Enforcement Notice also reinforced that rule 12.12 of the CAP Code applies to “all marketing material and advertising“.
In conjunction with this, the Enforcement Notice highlighted that such advertising is a breach of regulation 284(1) of the Human Medicines Regulations 2012 which prohibits the publishing of an “advertisement that is likely to lead to the use of a prescription only medicine“. The MHRA has published guidance on this and, more generally, on the provisions and requirements laid down in the legislation on advertising medicines, in the MHRA’s Blue Guide: Advertising and Promotion of Medicines in the UK.
The ASA has taken a robust approach to ads promoting Kenalog and said that images and hashtags referring to Kenalog in posts must be removed. It is said also that it is likely that indirect references such as “hay fever injection” and “hay fever jab” ‘are likely to be considered references to Kenalog‘ and have the same effect as promoting it.‘ In its ruling against Elite Aesthetic Clinic, the ASA determined that the placing of “Book now” in the same post as “Hay-fever clinic” had the clear implication that “an appointment at the Hay Fever Clinic would result in the consumer being prescribed Kenalog“.
The ASA said in its Enforcement Notice that if problems persisted with ads after 29 August 2022, then it would take “targeted enforcement action to ensure a level playing field“.
