Potentially misleading promotional video
The promotional activity this complaint relates to occurred at the JCN Conference in Cardiff (1 Feb 2017), the Wounds UK Conference in Harrogate (14-16 Nov 2016) and in several other places. The complaint was made by a non-member company and related specifically to a promotional video used by 3M:
The video starts with a picture of tubes of both 3M Cavilon and Medi Derma S, with a ‘vs’ sign in between, indicating that the demonstration was a comparison of the ‘wash off’ resistance of the two barrier creams.
The video then cuts to two apparently identical tanks of water and a demonstrator in a lab coat behind – with hands outstretched. Amounts of each barrier cream were then applied to separate hands.
The demonstrator then places her hands in the two tanks – one hand in each tank. She then moves her hands around in the tanks. After 15 seconds the tank with the hand carrying the Medi Derma S starts to become cloudy, whereas the tank with the hand carrying Cavilon remains entirely clear.
Both hands are then removed from their respective tanks, leaving a clear solution on the Cavilon side, and a turbid solution on the Medi Derma S side. The implication is that the Cavilon stayed in place – thus continuing barrier properties – whereas the Medi Derma S had, at least in part, been removed from the hand and gone into suspension.
The video then cuts to a picture of Cavilon products with a strapline saying ‘The bottom line…’, which is then replaced by ‘3M Cavilon Durable Barrier Cream remains on the skin better than DERMA-S Barrier Cream after water exposure’. The video then finishes with the 3M logo
An official complaint was received on 24 February 2017 and alleged that this campaign contravened sections 1.2, 1.5, 2.1,2.4 and 3.3 of the SDMA Code of Practice (revision 5 then being in force).
The panel noted that the complainant company did not provide evidence they had contacted 3M and tried to resolve the matter prior to lodging a formal complaint with the SDMA (as required by the code). However, some panel members had heard reports of conversations (some quite robust) between representatives of the complainant company and 3M concerning comparative demonstrations of the type shown in the video. Taking into account that complainant company was not members of the association, and would not be as conversant with the complaint process as a member would be, the panel decided to that the complaint should be heard.
After viewing the video demonstration in considerable detail, the panel concluded that:
- There appeared to be significantly more cream applied to the hand with Medi Derma S.
- The 3M Cavilon appeared to have been vigorously rubbed in, in contrast to the Medi Derma S which was simply smeared – leaving excess quantities of cream remaining on the surface.
- The IFUs (Instructions for Use) for Medi Derma S were clearly not followed as:
- the excess Medi Derma S was not removed to ensure the skin was clearly visible
- a pea-size amount of Medi Derma S should have been used
The apparent turbidity seen with Medi Derma S may have been a result of the apparent excess amount applied. If the observer was to draw a clinically-relevant conclusion from the apparent turbidity of the water, the video should have explained the significance of any turbidity. The observer was therefore invited to draw an apparently obvious, but unsubstantiated, conclusion (that Cavilon performed better).
Section 3.4 (paragraph 2) of the code indicates that advertising and promotional material must at all times be legal, accurate, balanced, fair, objective and unambiguous and must not mislead or contain any exaggerated claims either direct or implied and must not misrepresent competitors’ products by the inaccurate or inappropriate use of data.
Section 3.6 (paragraph 2) of the code indicates that information, claims and comparisons for all products must be accurate, balanced, fair, objective and unambiguous. They must not mislead either directly or by implication. Any information, claim or comparison must be capable of substantiation.
The panel thus found 3M to be in breach of clauses 3.4 and 3.6 of the code on the basis that the video was ambiguous and potentially misleading.
In addition, section 3.4 (paragraph 4) of the code also indicates that companies should not make claims for or comparisons with any product which are in any way inaccurate, misleading, disparaging, in poor taste or which discredit another company or the surgical dressings industry.
Here, the panel concluded that, by specifically naming the Medi Derma S product in this video, 3M contravened clause 3.4 of the code, as the video could mislead by implication. It therefore follows that any representative of 3M who showed the video or performed this demonstration would also contravene clause 3.3 of the code.
Concerning the assertion that clauses 1.2, 2.1, 2.4 of the code might have been breached, the panel felt this was not the case, as the activities of one member cannot be taken as representative of the industry.
Complaint adjudicated on 22 June 2017