On 15 April 2021, having first attempted inter-company dialogue, GSK raised formal concerns with PAGB regarding the Sterimar website and three pieces of point of sale material, featuring variations of a ‘No. 1 GP recommended brand’ claim.
GSK objected that the claim implied that Sterimar is the no.1 GP recommended brand across all categories, including medicines and non-medicines, because it was not accompanied by an appropriate qualification. Where qualifications were included, they were insufficiently prominent and/or specific regarding the fact that the data related to ‘non-medicated nasal sprays’ only.
The complaint asserted that the omission of the information ‘non-medicated nasal sprays’ is likely to mislead consumers. It also asserted that the qualification, where included, contradicts rather than clarifies the claim and is therefore also likely to mislead consumers.
GSK also questioned whether the caveat was appropriate, as the data related to Sodium Chloride, Sesame Oil and Hypromellose sprays, and requested confirmation that the data covers all non-medicated nasal sprays.
Lewis Silkin LLP, acting on behalf of Church and Dwight, responded that the advertiser has changed the wording of the main claim on its website to read ‘From the UK’s No.1 GP recommended non-medicated nasal spray brand*. This is in line with the wording requested by GSK in their initial intercompany dialogue. The logo has also been amended to include the qualifier ‘*Non-medicated Nasal Sprays*’ directly beneath it.
Of the three point of sale materials highlighted, they noted that one was a temporary retailer produced tray (rather than shelf ready packaging produced by Church and Dwight) and therefore the retailer’s responsibility to replace.
It was highlighted that the retailer’s tray design is now out of date and should no longer be in use by retailers. The Sterimar brand manager has written to the Church & Dwight’s Shopper Marketing team, which is responsible for aligning the tray design with the retailer, about the exact claims and disclaimers that retailers should use and will confirm conformity of updated retailer trays.
The two other point of sale items were Shelf Ready Packaging material, for which Church & Dwight accepted responsibility. They stated that the process of updating the SRP had commenced and is on-going, and the updates will address the concerns regarding these materials.
The defendant confirmed that the data covered all non-medicated sprays that, to their knowledge, were prescribed by GPs in the UK and that Sterimar covered 99% of the total non-medicated sprays.
GSK’s complaint was considered against PAGB Medical Devices Consumer Code rule 15 by members of the PAGB Senior Management Team (“PSMT”). On the 18 May 2021 the PSMT concluded the Code had been breached.
PSMT reviewed the Copy Clearance report, the material provided by the member companies and relevant guidance.
PSMT noted that the data set established that Sterimar accounts for more than 99% of the total of non-medicated sprays prescribed. Church and Dwight confirmed that they were not aware of any type of non-medicated spray omitted from this data, and GSK did not present evidence of any other types. As such, PSMT considers that the claim ‘UK’s No.1 GP recommended non-medicated nasal spray brand’ has been substantiated.
PSMT considered whether the claims within the ads were likely to mislead consumers by omission of a reference or prominent qualification related to non-medicated nasal sprays. The Medical Devices Consumer Code states that ‘Asterisks must not be used to contradict claims that would otherwise be false or misleading. Qualifying statements should be positioned close to the original claim.’ It is considered that the claim ‘GP Recommended No. 1 Brand’ was likely to mislead consumers by omitting key information regarding the product type. In ads (1) and (2.a) the qualifying information was positioned with insufficient prominence and clarity. In ad (2.b) the appropriate qualifying information was not included.
It is considered that the claim ‘No1 GP Recommended brand for nasal conditions’ is also likely to mislead consumers, as it fails to clarify that the claim only applies to non-medicated products. The qualifying information in this instance referred to saline products but did not specify that only non-medicinal brands were included.
PMST therefore concluded that the claims were in breach of Rule 15 of the Medical Devices Consumer Code, and considered that the claims ‘No1 GP Recommended brand’ and ‘No1 GP Recommended brand for nasal conditions’ should be amended to ‘No.1 GP recommended non-medicated nasal spray brand’ or similar. Alternatively, the claim ‘No1 GP Recommended brand’ should be accompanied by the qualifying statement ‘non-medicated nasal sprays’ positioned close to the original claim in significantly large font to ensure that it can be easily seen at the same time as reading the claim.
It is noted that this conclusion is in line with agreements made and activities already progressed between GSK and Church & Dwight as part of the intercompany complaints process.
PSMT understands that Church and Dwight has now amended the website to clarify that the claim applies to non-medicated nasal sprays either within or directly next to the claim. This addresses GSK’s complaint, and we therefore do not consider any further action necessary on this point.
PSMT understands that Church and Dwight is taking action to remove the point of sale materials identified in the complaint. The Shelf Ready Packaging tray is being updated and no further product is being distributed in the tray with the current claims. The Church and Dwight Shopper Marketing team is contacting all relevant stores that product was distributed to take remedial action as mentioned in their response. All non-compliant material should no longer available in store within 4 weeks of the date of the management report. In the event that materials are in seen on display after this date we expect Church and Dwight to be follow this up with the retailers and emphasise the need to withdraw the materials, referencing the complaint.
More information about the PAGB Complaints Procedure is available here.