When do efficacy claims for toothpaste become medicinal and is describing a dental surgeon as ‘Dr’ really misleading? James Pond reports on a perhaps surprising scrape GSK got into in front of the ASA.
Topic: Health and beauty
Who: ASA -v- GlaxoSmithKline UK Ltd
Where: UK
When: March 2007
What happened:
GSK has had a recent ASA adjudication upheld in respect of recent advertising it ran for its Sensodyne Total Care Extra Fresh toothpaste. Regular marketinglaw readers will recall that this is not the first time this year that toothpaste advertising has got into regulatory hot water, it being only two months since the ASA also upheld a complaint against Colgate-Palmolive's over their "80% of dentists recommend" claim.
So how did GSK get into trouble? The adverts in question were magazine adverts, which showed a photograph of a named dentist alongside an illustration of the product and claims including "Sensodyne has always been my first mode of treatment for sensitivity" and "Dentists recommend Sensodyne for sensitive teeth".
The ASA reviewed these ads with respect to the following three issues:
1. Use of "Dr" in one advert.
In one of the adverts, the named dentist was identified as "Dr Stemmer B.D.S.", and a member of the public queried whether the use of the title "Dr" was appropriate. GSK explained that Dr Stemmer was a practising dental surgeon who used the "Dr" title in his professional capacity, and the fact that he was a dentist was made clear by the letters B.D.S appearing after his name and the large "Dentists recommend Sensodyne" strapline. GSK held a letter of consent from Dr Stemmer which confirmed he held a dentist qualification and that he signed himself "Dr Stemmer".
Although the ASA agreed that the ad made clear that Dr Stemmer was a dentist, they considered that the reference to "Dr" implied that he held a general medical qualification and because they understood that he did not they considered that the ad could mislead. Complaint upheld – GSK 0, ASA 1.
2. Endorsement of Sensodyne by a health professional
Colgate-Palmolive, perhaps inspired by their own recent run-in with the ASA, separately challenged the endorsement of Sensodyne by a health professional in the ad. Under clause 50.17 of the CAP Code marketers are not permitted to use health professionals (or celebrities) to endorse medicines.
GSK explained that they were aware of this provision, but that the product illustrated in the ads, Sensodyne Total Care Extra Fresh, was a cosmetic product and not a licensed medicine.
Were GSK home and dry? Sadly not – although the ASA accepted that the product pictured was a cosmetic product, it noted that four other products in the Sensodyne range were licensed medicines, and because the strapline endorsements in the ads referred only to Sensodyne (e.g. "Sensodyne has always been my first mode of treatment for sensitivity") the ASA decided that the endorsement was likely to be seen as relating to the whole Sensodyne range, and not merely to the specific product pictured. Again, complaint upheld – GSK 0, ASA 2.
3. Medicinal claims for non-licensed product?
Not content with investigating the two complaints above, the ASA itself also challenged whether the references to sensitivity in the ads amounted to "medicinal claims". Clause 50.11 of the CAP Code prevents marketers making medicinal claims for products which do not have a marketing authorisation from the MCA (now the MHRA – the Medicines and Healthcare products Regulatory Agency).
GSK acknowledged that Sensodyne Total Care Extra Fresh was not licensed as a medicine, and that the claim "Sensodyne has always been my first mode of treatment for sensitivity" could be construed as a medicinal claim. As such they said they would remove the claim from future advertising for Sensodyne Total Care Extra Fresh.
The ASA contacted the MHRA, who confirmed that although toothpaste is usually regarded as a cosmetic product, where it is marketed with claims to treat or prevent sensitive teeth then it would fall within the definition of a medicinal product and be subject to medicines control. Because the adverts made medicinal claims, but contained images of a cosmetic product (Sensodyne Total Care Extra Fresh) the ASA upheld its challenge. Game over – ASA run out easy 3-0 winners.
Why this matters:
This adjudication is a good reminder that certain categories of products are subject to specific additional advertising restrictions which tend to be very strictly applied by the ASA.
In fairness, although GSK could feel a little unlucky with the verdict on the first two issues, it can have no complaint on the final issue. In fact an ASA complaint upheld is perhaps not the worst possible outcome for GSK, considering that the MHRA has the power to bring criminal prosecutions in respect of breaches of the medicines regulatory controls.
