Advertisements for NHS-funded services to be regulated

A Code of Practice for the Promotion of NHS-Funded Services has been issued to regulate the advertising of NHS-funded services. The new CoP requires all providers of NHS-funded services to comply with applicable Advertising Standards Authority (ASA) Codes and with additional NHS-specific rules.

Why has the NHS Promotion Code been introduced?

As of 1 April 2008, all patients requiring an elective referral are able to select services from any hospital provider that meets NHS standards and costs. The Department of Health has stated that that in order to ensure patients can make effective choices and receive the treatment that best fits their individual needs, they will need to have accurate information concerning the services available to them and one source of this may be providers of NHS services themselves who make available additional information about the services they provide. The Code will govern such promotional material to ensure that the material is accurate and fair, and protects patients, the public and referring clinicians from offensive or misleading material and also to ensure that the NHS brand and reputation is not damaged by such promotional material.

Scope of Application

The Code was launched on 19 March 2008 and applies to all providers of NHS-commissioned services, whether independent sector, NHS providers or charities. The Code will apply to the entire range of promotional activity undertaken by providers of NHS-funded services, including advertising, direct marketing to patients and information directed at referring clinicians. It is also intended to regulate the level of expenditure on promotional activity by requiring open disclosure of this by providers.

Split Enforcement of the Code

Marketing communications already covered by the Advertising Codes administered by the ASA will remain under the ASA regime and the ASA will adjudicate upon all complaints concerning breaches of the ASA Codes.

The NHS Promotion Code also contains additional NHS-specific rules for promotional materials or activities which are not covered by the ASA Codes. The relevant commissioning Primary Care Trust (PCT) and or Strategic Health Authority (SHA) will adjudicate upon complaints in relation to these rules and will enforce the Code, compliance with which will be required in almost all contracts for NHS-funded services. Where disputes cannot be resolved locally through discussion with providers, PCTs or SHAs may seek expert advice from the Cooperation and Competition Panel, which should be operational from October 2008, and can refer complaints to either the Panel or the ASA to be dealt with, as appropriate.

NHS Promotion Code Principles

The Code sets out general principles and contains specific rules covering the following: NHS brand / reputation protection; direct marketing to public and referring clinicians; claim substantiation and comparative claims; service providers’ representatives; promotional expenditure; gifts and inducements to referring clinicians and commissioners; inducements to the public; testimonials and endorsements; sponsorship; compliance with undertakings and complaints and enforcement.

Key points to note include:

• Comparative claims are permitted subject to compliance with ASA Codes.

• TV or cinema promotion is likely to be unjustifiable because disproportionate.

• Promotions should not contravene the values and brand policy of the NHS or undermine its reputation or brand or public confidence in the NHS.

• DTC or clinician promotions must comply with the NHS Confidentiality Code and Mailing Preference Service requirements and all mailing lists must be kept up-to-date.

• Claims must be capable of standing alone with regard to accuracy and footnote qualifiers should generally be avoided.

• The source and date of data used in any promotional activity must be transparent.

• Only the most recently available data may be used for claims based on statistical information.

• Items on long-term or permanent loan are regarded as gifts and are subject to Code requirements.

• No financial inducements or benefits for treatment (e.g. sales promotions) can be offered to the public.

• Testimonials and endorsements must be representative of patients’ views generally and substantiated by patient surveys.

• Public figures and medical experts are not prevented from giving testimonials as long as these comply with the Code.