I made these claims up, but they probably look familiar because you have seen similar claims for topical anti-wrinkle creams in print advertisements and television commercials offering seemingly unrealistic results. The plethora of advertising in this billion-dollar industry is no surprise, and given the current economic downturn, more aggressive advertising has emerged in all product areas, including cosmetics, as manufacturers fight harder to gain market share. Several years ago, these kinds of advertisements caught the attention of the National Advertising Division (NAD) of the Council of Better Business Bureaus. NAD is the investigatory arm of the self-regulatory forum created by the advertising industry which seeks to ensure the truthfulness and accuracy of national advertising. NAD monitors advertising directly as well as advertising brought to its attention through consumer and competitor challenges. The self-regulatory process increases public trust in the credibility of advertising and, in turn, enables consumers to make better purchasing decisions. NAD has brought monitoring cases requesting claim substantiation from many cosmetics manufacturers including manufacturers of cosmetic dietary supplements. To date, there have been few competitor challenges to advertising for cosmetics and none for products that claim anti-aging benefits.
In many cases, there is very comprehensive testing submitted as claim substantiation (e.g., clinical testing involving expert and/or self-assessments; technical measurements such as corneometer testing to measure skin moisture level and dansyl chloride testing to determine the efficacy of a product as an exfoliator; consumer use tests involving self-assessment of various attributes [egs., wrinkle reduction; skin texture]). But very often, the claims regarding a product’s performance capability simply do not match, more often than not overstating the testing results. For example, in one case
(L’Oréal USA (Lancome Paris High Resolution Refill-3X™), Report#5074, NAD/CARU Case Reports,August 2009), the claim “In 4 Weeks, Wrinkles Appear Significantly Reduced, As though Refilled from Within” was based on ratings of participants in a consumer use test responding to various attribute questions. The questionnaire attributes most closely pertaining to the claim at issue were “skin looks younger” and “skin’s imperfection look diminished.” Although some attributes related to aspects relating to wrinkles (egs, “skin feels more elastic”; “skin feels firmer”), none specifically mentioned “wrinkles” or a whether they are “significantly reduced,” and results relating most closely to the claim at issue were not overwhelmingly positive as is conveyed by the advertisement. As such, NAD recommended that the claim “In 4 Weeks, Wrinkles Appear Significantly Reduced, As though Refilled from Within” be modified to more closely reflect the results and wording of the attribute questions.
In other cases, there is no product testing at all, as manufacturers rely on ingredient testing to support product performance claims. The efficacy of the individual ingredients may be sufficient to support an ingredient claim (e.g., Ingredient X makes your skin smoother), particularly if the same amount of the ingredient found in the product was tested, but companies cannot use findings from ingredient studies to support performance claims for the advertised product, particularly when the tested ingredient works with other active ingredients, because there is no evidence demonstrating how that combination of ingredients will perform in actual use.We see ingredient studies as support for product performance claims in the area of dietary supplements and the same rules apply.As a general rule, only testing on the advertised product itself can support product performance claims.
In some cases the advertiser submits no product testing but instead relies on testing of a formulation similar to the product.In one case, two clinical studies were conducted on assessed the cosmetic benefits of astaxanthin and tocotrienols (Vitamin E), which are two of the ingredients in the product.While studies showed positive results in terms of smoother skin, increased skin elasticity and a reduction in fine lines and wrinkles, there were other limitations in the studies, such as a small sample size, the product not being administered pursuant to its use instructions, the amount of ingredient not corresponding to the amount found in the actual product and studies being conducted only during the winter.Given these flaws in the evidence, NAD recommended that strong and unsupported performance (“It’s like getting a facelift without the invasive surgery”) and “clinically proven” claims be discontinued while other claims related to the product’s ability to increase firmness, skin smoothness and elasticity be modified to reflect that there is emerging evidence that some of the ingredients in the product have been shown to have potential benefits in improving the appearance of aging skin and in reducing oxidative stress on the skin.
Here are some pointers for cosmetics manufacturers when considering what claims to make for their products:
1) The best evidence to support claims of product efficacy is reliable and detailed testing on the advertised product;
2) Avoid likening topical cosmetic products to invasive medical procedures and if such procedures are mentioned, make very clear that the product use results are not comparable to such procedures;
3) Quantified performance claims (e.g., “30% fewer wrinkles”) require reliable clinical studies with statistically significant results that closely mirror the claims at issue;
4) In the absence of product testing, claims about the benefits of certain ingredients may be appropriate provided there are reliable studies that link the ingredient to a claimed product benefit and the claims accurately reflect the studies’ results; and
5) Performance claims based on self-assessments from consumer use testing should mirror the wording of the attribute questions.
About the Author
Annie Ugurlayan is a Senior Staff Attorney at the National Advertising Division. Since 2003, she has handled more 150 cases, with a particular focus on cosmetics and food cases.She is Chair of the Consumer Affairs Committee and a member of the Board of Directors of the New York Women’s Bar Association Foundation, as well as local and national bar associations.Annie is fluent in French and Armenian and proficient in Romanian.She is a graduate of Hamilton College and Hofstra University School of Law.