On August 3, 2022, the United Kingdom (U.K.) advertising industry’s Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) issued a ruling against Elite Aesthetic Clinic Ltd for running advertisements on its social media pages and its website for “hay fever injections” to treat allergic rhinitis. The link in the social media advertisement led to a page on Elite Aesthetic Clinic’s website that provided information about injections of Kenalog, a prescription-only steroid medicine for allergic rhinitis. The page did not provide any information about other treatments for allergic rhinitis. Kenalog is currently licensed in the U.K. as a medicine to treat other conditions but not allergic rhinitis, though it may be prescribed by a clinician as an “off-label” medicine. Clinicians who prescribe a medicine off-label are personally responsible for any issues that arise from the medicine’s use.
The advertisement of prescription-only medicine to the public is prohibited in the U.K. under the Human Medicines Regulations 2012. Regulation 284 provides that, with the exception of approved vaccine campaigns, “[a] person may not publish an advertisement that is likely to lead to the use of a prescription only medicine.” It is also prohibited under rule 12.12 of the nonbroadcast advertising CAP Code, as published by CAP and self-regulated by the ASA. The rule provides that “[p]rescription-only medicines or prescription-only medical treatments may not be advertised to the public.” This applies to both direct and indirect advertisements.
Elite Aesthetic Clinic argued that it believed the term “hay fever injection” would not be prohibited by the CAP code because the brand of medicine was not mentioned in the advertisements and the advertisements were for a medical consultation, rather than for the treatment itself. The ASA and CAP found that the advertisement did not reference any other treatment for allergic rhinitis and that “the ad had a clear implication that an appointment at the Hay Fever Clinic would result in the consumer being prescribed Kenalog. Because of that, we considered the ad promoted a prescription-only medicine to the general public and concluded that it breached the Code.”
As a result, the ASA and CAP found that Elite Aesthetic Clinic had breached rule 12.12 of the CAP Code and required Elite Aesthetic not to run the ads again in their current form, or to promote prescription-only medicines to the public at any time.
In part, as a result of this ruling, the Medicines and Healthcare Products Regulatory Agency (MHRA) and CAP published a joint enforcement notice warning all organizations that offer Kenalog as a treatment for allergic rhinitis to stop advertising it on any social media platform and on their websites. The warning provides that all references on social media to Kenalog in text, images, emojis, memes, and common phrases, such as the “hay fever injection,” including account names, had to be removed by August 29, 2022. Any such references that were not removed by this date would be removed by CAP’s compliance team using targeted software, and the continued promotion of this medicine to the public would result in enforcement action by the MHRA.
Clare Feikert-Ahalt, Law Library of Congress
November 9, 2022
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