On 8 September 2021, having first attempted inter-company dialogue, Reckitt raised formal concerns with PAGB regarding the claim ‘“The Dulco-Range – UK’s #1 effective constipation relief range* based on sales data for verification please email firstname.lastname@example.org”, seen on the Dulco website in June 2021.
Reckitt objected to the claim on several grounds. First, that the Dulco number one selling claim is based on the total doses of the products sold, not unit sales. Using unit sales as a measure Senokot is the number one selling brand in this category, and the claim is therefore misleading.
Reckitt further objected that it is not possible to make a like for like comparison between products in this category as they have different actives, formats and sizes which will impact the number of doses for each unit of product sold.
The complaint also asserted that the use of dosage data to support the claims indirectly promoted bigger pack sizes/more doses, which is not appropriate for the category of stimulant laxatives.
Finally Reckitt objected that the use of the term “effective” within the claim implies that the Dulco range is the most effective constipation relief range of products in the UK, as opposed to bestselling, which is not supported.
PSMT noted that the Consumer Code does not specify whether “volume” should be measured by unit sales or dose sales. Historically unit sales have been considered acceptable data to support number one selling claims, but there is no precedent which states that the volume of doses cannot also be considered.
PAGB sought advice from the CAP Copy Advice team, who shared the following comments:
It is typically the case that the ASA would expect to see comparative unit sales for “best seller” type claims. However, there is a possibility that if this unit sales data does not take into account packaging sizes, it could result in an unfair and therefore a misleading comparison. This doesn’t necessarily mean that a comparison using sales data isn’t possible where there is size discrepancy, but it does potentially mean that relying solely on unit sales data may not be sufficient for an unqualified “best seller” type claim.
There is also a possibility that the ASA may consider a comparison that includes products of different strengths (e.g. 200mg vs 400mg ibuprofen) to be a material factor in a comparison. The ASA may also ask the advertiser that is comparing with a higher or lower strength product to demonstrate that it is a comparison with products that have the same need or purpose (rule 3.34 [CAP Code]).
It is possible that if there is a discrepancy in size and strength that this could be qualified in the ad (as opposed to only in the verifiability data) to explain that the comparison is based on unit sales and does not take into account the amount of product in a individual unit. However, the likely acceptability of any qualification will depend on a number of factors including the likely interpretation of the headline claim and the qualification and the likelihood of there being any size discrepancy within that data. Additionally, care would need to be taken to ensure that any qualification regarding size differences did not contradict the headline “best seller” claim.
PSMT reviewed the data and rationales supplied by the advertiser and complainant, and the view of the CAP Copy Advice team.
PSMT considered what information would be most pertinent to consumers, and how the claim was likely to be interpreted. We considered that “#1” was likely to understood to mean the brand with the highest quantity of product sold, which was best represented by the overall number of doses rather than packs, which could vary in size and overall quantity of product. We recognised that products within the Dulco range have different actives, formats and pack sizes, but noted that it is standard industry practice to make comparative sales claims based on category and indication. We considered it reasonable that consumers would understand such comparisons to include all relevant products in the therapeutic category unless specified within the claim. We also considered it reasonable to include all pack sizes when considering overall quantity sold.
Therefore, as the Dulco range leads in number of doses sold, we considered it accurate to describe this as the #1 selling brand in the category. We did not consider that the claim was misleading and therefore there had been no breach of the Code on this point.
PSMT noted that the claim did not actively refer to larger pack sizes. There was no evidence to suggest that sales had not been compliant with MHRA guidance and restrictions, and the use of the data from larger packs to support the claim did not in itself constitute the promotion of larger packs. We did not consider consumers were likely to buy larger packs than required for their needs because of the #1 claim, or that it could be considered to bring the industry into disrepute. We therefore considered there has been no breach of the Code on these points.
Finally, PSMT noted that the claim “effective” is permitted for all licenced medicines, excluding tradition herbal medicines, and is not generally interpreted as suggesting that the referenced product or brand is more effective than other licenced medicines. The PAGB Code states that number one sales claims must be suitably qualified to ensure they do not imply superior efficacy. It is common practice to include this information in a qualifying footnote. We noted that an asterisk linked the claim to the qualifier “based on sales data”. We considered this is sufficient to identify the claim as a sales, rather than efficacy claim and therefore there had been no breach of the Code on this point.
Conclusion: No breach of the Code
More information about the PAGB Complaints Procedure is available here.