Last week the UK’s advertising regulator, the Advertising Standards Authority (ASA), banned a TV ad from High Tech Health for a “circulation booster,”which it found amounted to teleshopping of a medical treatment. The promotion of medical treatments via teleshopping is prohibited in Europe under the Audiovisual Media Services (‘AVMS’) Directive 2010/13 and its predecessor legislation; in the UK, the prohibition is reflected in the BCAP code for broadcast advertising. High Tech Health contended that its TV advert did not amount to “teleshopping” as defined in the AVMS Directive because it did not involve a “direct offer” (in the sense of a contractual offer); the broadcast was in a 60-second advertising slot rather than in a teleshopping window, and a consumer who chose to purchase the product would have to contact the company separately. High Tech Health also argued that its circulation booster was a medical device, rather than a medical treatment, suggesting that a more inclusive interpretation would have wide implications in terms of free movements of goods (a cornerstone of the EU internal market framework).
The ASA disagreed. It found that a “direct offer” was not synonymous with a contractual offer by the trader; the broadcast contained both a free phone number and a website address which took orders for the product, and the language of the ad explicitly sought a direct response from customers, urging them to “call now” or to go online to order the product. The AVMS Directive provided for teleshopping to take place in “spots” as well as “windows,” and the “circulation booster” was being presented for purchase for the purpose of treating medical conditions.
Advertisers in the EU should be particularly careful when promoting “health” products on TV: urging viewers to “buy now!” may well mean a TV ad is crossing the line into teleshopping territory. This decision also shows that the ASA will be unfazed by wider EU freedom of movement (or similar) arguments when it comes to interpreting rules meant to protect consumers.