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Groupon's 'Botox' voucher push breached ad rules – watchdog

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Groupon breached UK advertising rules when it promoted a cosmetics treatment on its site, the Advertising Standards Authority (ASA) has ruled.

The watchdog said that an advert that featured on the popular consumer voucher operator's website for discounted "facial injection treatments" was in effect promoting Botox treatments.

Botox is a prescription-only medicine and advertising such medicines to the public is prohibited under the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code).

ASA ordered Groupon not to feature the same ad again and said the company should "take care when promoting offers of this type to ensure they do not inadvertently advertise a prescription-only medicine".

Groupon had claimed that the advert was not promoting Botox to the public and that instead it was for a redeemable voucher for a supplier of a choice of services. However, ASA rejected the argument.

"Although the promotion did not use the term Botox, we nevertheless considered that the reference to 'Facial Injection Treatments' in the promotion referred to Botox," ASA said in its adjudication.

The watchdog said that it had come to that conclusion after Bath Facial Aesthetics, which was involved with the offer, had told it that the advert promoted two discounted treatments - one specifically for Botox and the other offering consumers a choice between "two Botox injections or one dermal filler".

Information on the Bath Facial Aesthetics website gave the "impression" that Botox was "more commonly used" to treat wrinkles around a person's eyes and forehead than dermal fillers. Pricing information on the website also confirmed that the savings promoted by Groupon matched precisely the difference between the discounted prices advertised and the normal cost for Botox treatments.

ASA said those factors had contributed to its finding Groupon's ad had been for the Botox treatments in breach of the CAP Code. Groupon's inability to provide "any documentary evidence to show that the offer was for dermal fillers" also counted against the discount voucher operator.

"We noted their comment that whether or not the offer was for Botox, the promotion did not promote that particular aspect of the offer and was therefore not promoting a prescription-only medicine, although we disagreed. We considered that because the savings figures appear to have been calculated on the basis of Botox treatments, rather than dermal fillers, and in the absence of evidence to show that the promotion was for dermal fillers, we concluded that the promotion was for Botox, a prescription-only medicine," ASA said.

The advertisement of prescription-only medicines to the public in the UK is also prohibited under the Association of the British Pharmaceutical Industry Code of Conduct (ABPI Code). The self-regulatory Code sets out rules based on compliance with UK laws, including The Medicines (Advertising) Regulations 1994. The regulations were introduced in the UK to implement an EU Directive, the 'Community code' relating to medicinal products for human use. Civil and criminal sanctions exist for serious breaches of the regulations.

The ABPI Code also prohibits companies releasing information about prescription only medicines that would encourage the public to ask their doctor for the product and requires that those companies maintain high standards and do not bring discredit upon, and reduce confidence in, the pharmaceutical industry.

ASA has previously expressed "serious concerns" about Groupon's ability to obey advertising rules. In December the watchdog said Groupon had repeatedly breached advertising rules and that it was "in the public interest" that the Office of Fair Trading (OFT) look into Groupon's sales practices more generally.

ASA can refer misleading advertisers to the OFT, the UK's consumer protection regulator.

The Consumer Protection from Unfair Trading Regulations prohibit unfair, misleading or aggressive selling practices. The OFT has the power to initiate legal proceedings against companies in breach of the regulations.

Copyright © 2012, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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