ASA and Medsafe respond to advertising health related claims for COVID-19 products

Further to our recent Alert on claims for Covid–19 products, regulators are taking immediate action to close down inappropriate advertising and sales that are occurring in the market.

The Advertising Standards Authority (ASA) has fast-tracked takedowns of misleading COVID-19 related advertisements and has required at least seven companies to change or take down advertisements referencing COVID-19 following complaints.

The ASA usually gives advertisers a chance to first review complaints and decide whether they want to act, but it has changed this process in response to COVID-19. In some cases the ASA has immediately required companies to change or remove ads to limit potentially harmful outcomes.

This swift action is due to the ASA’s concern that these ads could mislead consumers by making claims that are not substantiated, at a time when people may be feeling particularly vulnerable about their health and perhaps, as a result more likely to act in response to advertising and representations.

According to the ASA Chief Executive, Hilary Souter, the ASA has received at least 20 complaints, mostly from the therapeutic industries and at least seven complaints relating to COVID-19 from companies under the Therapeutic and Health Advertising Code have been settled this year. The Therapeutic and Health Advertising Code was developed by the ASA in collaboration with the New Zealand Medicines and Medical Devices Safety Authority (Medsafe) to ensure that advertising for therapeutic products or services will be conducted in a manner which is socially responsible and does not mislead or deceive the consumer.

The New Zealand Medicines and Medical Devices Safety Authority

Medsafe has also taken prompt action, recently to stop sales of a herbal remedy with claims linked to COVID-19. The president of Madagascar has claimed extract from Artemisia annua, also known as ‘sweet wormwood’, a common type of wormwood plant, is a treatment for coronavirus. The World Health Organisation, however, says there is no evidence to substantiate that claim.

Following a recommendation from the Medical Classification Committee, Medsafe has classified the Artemisia annua extract as “prescription” only – this change enables advertising and sales to be strictly controlled. Now all products containing the extract can only be supplied on a prescription given by a health care professional appropriately authorised under the Medicines Act 1981 (Medicines Act) and can no longer be sold over the counter or online.

Interestingly, Medsafe had previously issued two safety alerts associated with Artemisia annua extract in February and November 2018. The alerts advised members of the public taking Arthrem, a product containing the extract, of potential risk of harm to the liver.

Medsafe is part of the Ministry of Health and is the authority responsible for the regulation of therapeutic products in New Zealand. In New Zealand medicines are classified into three main groups based on the Medicines Act:

  • prescription medicine;
  • restricted medicine (also referred to as ‘pharmacist-only medicine'); and
  • pharmacy-only medicine (also referred to as ‘pharmacy medicine').

The Medicines Act also contains specific provisions controlling advertisements for products (medicines, medical devices, related products, and controlled drugs used as medicines) and prohibits the advertisement of the use of a product to prevent, alleviate, or cure any disease, without approval. When a medicine is approved in New Zealand, this classification is undertaken by Medsafe. The Medicines Act prohibits the importation of a prescription medicine without reasonable excuse. Any individual wishing to import this medicine is required to provide Medsafe with an original signed prescription or letter from a New Zealand doctor meeting specific regulatory requirements.

Practical Advice

Any advertisements in New Zealand, regardless of whether the product is manufactured in or outside of New Zealand, must only include claims that are substantiated and accurately represent the product being sold, and must not mislead or deceive consumers as to its nature or quality.

Before making a COVID-19 related claim or representation in an advertisement or in connection with the sale or supply of a product or service, businesses should:

  • ensure that the advertisements do not make claims that are unsubstantiated or that the business does not have reasonable grounds for believing to be true;
  • ensure that the advertisements rely on facts, figures and credible sources of information (reliance should not be placed on guesses or unsupported opinions). For COVID-19 or health related claims in particular, it is important to ensure that research results can be extrapolated, and scientific testing is conducted with qualified personnel interpreting results (such as appropriately involving expert opinion);
  • ensure they are complying with the Medicines Act that otherwise prohibits the publication of advertisements that directly or by implication claim, indicate, or suggest that medicines of the description, or medical devices of the kind, or the method of treatment, advertised will prevent or cure any disease, or prevent or terminate any physiological condition specified, or belonging to a class of disease or physiological condition specified in the Medicines Act.

If you have any questions, please contact one of our experts.

Chris Young heads MinterEllisonRuddWatts' Intellectual Property team. Anna Percy is a Solicitor in the Corporate IP/IT team.

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