371 - What are the rules regarding having Unbranded DTC materials aesthetically similar to Unbranded HCP materials? Can they share graphic elements, fonts, images?

Jennifer Carroll

Two particularly important considerations dwell at the core of this question.

Can using similar aesthetics create links between different assets and contexts? Yes it can. But not all cases of similar aesthetics would do so. A key factor is how likely an audience will have had some sort of exposure to both assets with similar aesthetics (not necessarily concurrently) as this would be an important prerequisite to the formation of a link.
Can linkage between different assets/contexts be an issue? Yes it can when the linkage would contravene an advertising regulation. Not all linkages would do so.

With that said, let's apply to your question. You are looking to use similar aesthetics in DTC unbranded and HCP unbranded tools. Can this create a link?

There are two directions to consider. The first direction I'll explore is whether HCPs might create a link between the HCP and DTC pieces. Yes indeed, they may form a link as they are exposed to both asset types. Is this an issue? Likely not as the pieces are both unbranded. If factors exist which actually inherently brand the HCP piece, the answer would be different as one would need to consider whether the message is on-label for the linked brand.

Now, might the consumer create a link between the HCP and DTC pieces? This is unlikely provided all distribution and dissemination factors for the HCP assets are such that a consumer would not realistically be exposed to the aesthetic on the HCP side. The consideration about whether the link is an issue would become moot if the link does not actually exist.

Caveat: consider the dangers which are inherent in general questions and answers:
One might interpret this answer as a green light. Please note the use of the term 'likely' above. This is multi-factorial and the various factors specific to your case can come together in complex and sometimes surprising ways. Unfortunately, it's hard to anticipate all ways in which various variables can fit together, so here is one example which fits the question parameters but could be problematic from a regulatory point of view. Say the unbranded DTC piece is a help-seeking announcement (which you'll recall cannot identify the manufacturer directly or indirectly). Let's also say that the unbranded HCP piece happens to be a gated website. SEM and banners direct traffic to the pre-gate landing page which contains the manufacturer name presented prominently and strong/unique imagery. Using that same imagery in the help-seeking announcement may create a link for the consumer between the manufacturer identity and the help-seeking announcement.
Given the parameters of this question, one could easily come up with dozens of scenarios which would not contravene the regulations for every scenario that might contravene the regulations. But there is still a need to pause and explore all campaign variables that can impact considerations 'i' and 'ii' above in your specific case in order to make sure you are not unknowingly crossing the line. If you need help for a specific scenario/campaign, feel free to send in a request for written opinion to the PAAB (see the fee schedule on our website www.paab.ca).