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.
Viagra is a prescription-only medicine (POM) and as such should not be advertised to the public (Rule 12.12). It is used for the treatment of sexual dysfunction. The Medicines and Healthcare products Regulatory Agency (MHRA) has successfully prosecuted marketers for the illegal sale and supply of Viagra. Also, the MHRA has acted against suppliers that have presented their products as an alternative to Viagra: it has considered those products as medicinal by presentation.
In November 2006, the ASA adjudicated on a complaint about an advertisement for a blue herbal pill (Interfact Ltd, 1 November 2006). Although the ad did not mention the word “Viagra” or refer to male potency or sexual performance, the ASA considered that the ad implied the product was Viagra. The ASA investigated whether the advertiser could prove the efficacy of the product. Irrespective of whether they hold evidence for efficacy, marketers that claim or imply their pills can treat impotence are almost certainly in breach of the Code for claiming to treat a serious medical condition (Rule 12.2).
Generally, CAP advises that such pills should be advertised on an availability-only platform (no direct or indirect claims of efficacy) and that advertisements should include a disclaimer stating that the products are herbal to differentiate them from Viagra. The ASA considered that Interfact’s disclaimer was not prominent enough. Marketers should therefore ensure that their disclaimer is legible.
Marketers should be wary of referring to any of the well-known features of Viagra, such as pills being blue or diamond-shaped, especially if the product is marketed in the context of sexual activity or performance. Both CAP and the ASA are likely to consider that the product being offered is likely to be seen as Viagra or an alternative to Viagra. References to “original” blue pills, “non-prescription formulation” (Prime Health Direct Ltd, 30 July 2003) or media coverage about Viagra could well be a problem depending on the context and likely consumer take-out.
As well as breaking the Code, marketers that claim or imply they are selling Viagra are likely to have legal problems such as passing-off or an MHRA investigation.
Marketers should ensure that their products do not contain medicinal herbs and should check with the MHRA if in doubt.
See 'Medicines: Prescription-only' and 'Medicines: Disease Awareness Marketing'
Last modified : 26 July 2010