Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
At the end of 2006, the ASA upheld a complaint about an ad, for a handwash gel, that stated "KILLS 99.8% OF GERMS. NO GERMS. INSTANT HAND SANITISER." The ad featured two quotes from the Daily Mail that stated "£2.99 HANDWASH KILLS MRSA and BIRD FLU” and "On average, people touch their faces every five minutes." A further quote by Dr Charles Gerba of the University of Arizona stated "80% of disease causing illness is spread by Hand." Although it rejected a complaint that the ad was an undue appeal to fear, the ASA ruled against the claim "Kills MRSA and Bird Flu": because the it suggested that the product could be used to treat or prevent infections caused by MRSA or Bird Flu pathogens, the claim was an unauthorised medicinal claim (Advanced Formulation (Europe) Ltd, 10 January 2007).
In reaching its decision, the ASA took advice from the Borderline Section at the Medicines and Healthcare products Regulatory Agency (MHRA). Guidance from the MHRA stated that any direct claim or implication that a product can be used to treat or prevent an infection associated with specifically named pathogens would be considered medicinal. That particularly applies to micro-organisms, such as MRSA, E-coli and Salmonella, that are frequently brought to the attention of the general public by the media. Claims such as “Kills MRSA” or “Effective against MRSA” are likely to be considered medicinal claims to prevent or treat infections that are caused by the MRSA micro-organism and are therefore unacceptable under law and the CAP Code.
Biocides are defined as containing “an active substance or a preparation containing one or more active substances, in the form in which it is supplied to the user, intended to destroy, deter, render harmless, prevent action of, or otherwise exert a controlling effect on, any harmful organism by chemical or biological means”. Marketers whose products are not caught by other legislation might want to check with the Health and Safety Executive (HSE) at www.hse.gov.uk.
In April 2006, the ASA ruled that surgical masks and respirators could help protect against SARS and Avian flu, but not MRSA. In that case, the ASA took advice from the HSE. Marketers should be aware that a product that is intended to prevent infection solely by providing a physical barrier against pathogens, may be classed as a medical device.
Marketers of products such as anti-bacterial or antiseptic products might want to seek advice from the MHRA (www.mhra.gov.uk) and the HSE before contacting the Copy Advice team.
Last modified : 29 March 2012