The UK is one of the largest wellness markets in Europe, with consumers willing to invest in premium products that help them achieve better physical or mental wellbeing. Luxury brands promoting wellness products should take care: some claims can shift a product from a wellness product to a medicinal one.
The rules are complex, and the UK’s Advertising Standards Authority (ASA) is actively looking for wellness ads that breach its codes.
Prevention is best
The ASA is using an AI-based active ad monitoring system to proactively identify ads that breach its codes, so advertisers now need to worry about complaints initiated by the ASA as well as from competitors and consumers. In 2024, 94% of the ads the ASA had amended or withdrawn were flagged by their own monitoring system.
Substantiate claims
Remember the golden rules: don’t mislead consumers (including by omission); make sure that you hold the evidence needed to substantiate any claims you make; avoid making false claims; and make sure that retailers have accurate information about your product.
Recent ASA decisions show that advertisers need to have the most comprehensive evidence possible, so be aware that claims about wellness products require a really high level of substantiation.
Know your product
Wellness covers a wide range of products, with different rules for different categories.
Medicinal claims can only be made for MHRA-regulated medicines and medical devices, so an LED face mask that is not registered as a medical device can’t claim to treat acne, for example. Supplements are treated as food under the CAP Code, which affects the claims you can make. Any ads for cosmetic interventions must be socially responsible, not misleading and not target under-18s.
The rules are complex. Brands should take care when marketing cosmetics, sleep aids, food products and menopause products.
Do not advertise prescription-only medicines (POMs) directly or indirectly
The UK does not allow POMs to advertise.
The ASA recently ruled that an influencer promoting anti-wrinkle injections without naming Botox was indirectly advertising a POM. They have also banned several ads promoting weight-loss jabs. Healthcare professionals can offer consultations for things that might be treated with POMs, a consultation for the treatment of fine lines and wrinkles, for example, but they cannot go any further than that.
Relevant, specific, authorised health claims needed for general health claims
Only make health claims that are listed as authorised on the Nutritional Health Claims Register. Take care to make the claim as it’s listed on the register, or so it has the same meaning as listed, and clearly link your claim to the relevant ingredient. If you want to make a more general health claim, make sure a specific health claim on the register accompanies it.
Gut health and sleep are two growth areas in the wellness industry. But these are tricky areas because there are no authorised health claims relating to sleep quality on the register, and the majority of gut health claims aren’t authorised.
The ASA says symptoms of the menopause and perimenopause are medical conditions
Menopause products are in vogue at the moment. But, because the ASA considers symptoms of the menopause and perimenopause as medical conditions, claims to alleviate these symptoms are not allowed. If you’re marketing a supplement that contains an ingredient with a relevant claim listed as authorised on the Nutritional Health Claims Register, you can use that, but this doesn’t apply to creams and other topical products.
Be aware that the ASA is likely to consider the symptoms of the menopause to be conditions for which medical supervision should be sought, so ads promoting products that alleviate menopause symptoms shouldn’t discourage this.
Don’t use influencers or health professionals to endorse medicines
Health claims that refer to the recommendation of an individual health professional are not allowed. Brands can make claims that refer to the recommendation of an association if that association is a health-related charity or national representative of a body of medicine, nutrition or dietetics, but not an individual.
Get advice early
No brand wants to be on the receiving end of an ASA decision. If you’re not sure an ad is ok, seek advice before it goes out. If you do receive a complaint, it’s possible to resolve ASA complaints informally, and often confidentially, which can protect your brand’s reputation if you ask for expert help early.
Iona Silverman is a partner in Freeths’ intellectual property and media practice. She advises on all aspects of advertising, marketing and consumer law in the UK. Iona also advises on working with influencers, product design and product packaging claims, with a particular interest in health and wellness claims, as well as in environmental claims and greenwashing. She can be reached at [email protected].
Eleanor Bradberry also advises on comparative advertising and marketing, ASA investigations, and branding, trademarks, copyright and passing off. She can be reached at [email protected].
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