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ASA Adjudication on Henkel AG & Co KGaA

Henkel AG & Co KGaA t/a Schwarzkopf

Oxford House
Oxford Road
Aylesbury
HP21 8SZ

Date:

1 February 2012

Media:

Magazine, Internet (website content)

Sector:

Health and beauty

Number of complaints:

1

Complaint Ref:

A11-164348

Ad

Two magazine ads and the advertiser's website promoted hair colouring products:

a.   A magazine ad, in Creative Head stated "IGORA Senea by Schwarzkopf Professional is the 1st coloration tested and recommended* by dermatologists to be used on delicate scalps".  The claim was linked to small print that stated "recommended by independent dermatologists". Further text stated "It's also perfect for tempting back lapsed colour clients who've stopped colouring their hair due to bad experiences with irritation or discomfort", "you can offer an exciting new colour service to clients who've previously put up with scalp discomfort because there was simply no alternative", "Itchiness ... a red, irritated scalp ... are all common symptoms of a delicate scalp.  The IGORA Senea care range delivers solutions at-home ... in one fell swoop it helps reduce and prevent discomfort from delicate scalps", "Panthenol delivers necessary moisture and helps to balance hair and scalp moisture content", "Aloe essence and panthenol reinforce the hair and scalp's moisture content" and "Allantoin and bisabolol help to sooth discomfort on delicate scalps and panthenol adds necessary moisture".  The ad also stated "Specially formulated for delicate scalps", "Specially formulated for delicate scalps" and "Perfect white coverage up to 90%". Text on the product packaging in all three ads stated "HIGH SCALP COMFORT" and "PERFECT GREY COVERAGE".

b.   A magazine ad, in Salon Business, stated "World premiere: the first permanent colour recommended by dermatologists*".  The claim was linked to small print that stated "recommended by independent dermatologists". The ad also stated "Specially formulated for delicate scalps", "Specially formulated for delicate scalps" and "Perfect white coverage up to 90%". Text on the product packaging in all three ads stated "HIGH SCALP COMFORT" and "PERFECT GREY COVERAGE".

c.   The advertiser's website included the text "Specially formulated for delicate scalps", "Specially formulated for delicate scalps" and "Perfect white coverage up to 90%". Text on the product packaging in all three ads stated "HIGH SCALP COMFORT" and "PERFECT GREY COVERAGE".

All three ads included a 'seal of approval' logo from the Institute for Applied Dermatological Research which stated "dermatologically approved".

Issue

L'Oreal (UK) Ltd challenged whether:

1.   ads (a), (b) and (c) which included claims that the products were appropriate for sensitive scalps, were misleading because they understood the products contained known irritants and allergens which may not be appropriate for use on delicate scalps;

2.   the substantiation the advertisers held was sufficiently robust to justify the general claims that the products were "recommended by dermatologists to be used on delicate scalps";

3.    the advertisers held sufficient substantiation for the claimed efficacy for the products, including those claims for the specific ingredients (panthenol, aloe essence, allantoin and bisabolol);  

4.   the claims "perfect white coverage" and "PERFECT GREY COVERAGE" misleadingly implied 100% coverage and whether the "perfect white coverage" claim was contradicted by the further text "up to 90 per cent white coverage"; and

5.   the claim "you can offer an exciting new colour service to clients who've previously put up with scalp discomfort because there was simply no alternative," was misleading because other hair colour products geared towards scalp comfort had been available for some time.

CAP Code (Edition 12)

Response

Henkel AG & Co KgaA (Henkel) stated that hair colourants were commonly classified into product categories according to how long the colour lasted.  They explained that with permanent hair colourants, the colour molecules were embedded into the hair structure and were known as "oxidative hair colourants" which, as a general rule, included hair dye pre-cursers and which included either p-phenylendediamine (PPD) or p-toluylenediamine (PTD).   They stated that permanent hair dyes also tended to require an alkalising agent in order to achieve the necessary pH to encourage a reaction and make the hair swell, which enabled the dye molecules to be embedded into the hair structure.  They explained that the most common alkalising agent was ammonia (NH3).  Finally, they stated that the most common oxidising agent used in permanent hair dyes hydrogen peroxide (H2O2).  They explained that these ingredients were not always well tolerated by all users and that whilst all the products made by Henkel complied with strict regulations, the products could cause irritation and sometimes allergic reactions in users with sensitive skin.  They stated that the key irritants for individuals with sensitive skin were PPD/PPD, ammonia with high pH values and the high concentrate hydrogen peroxide.  They provided studies which examined the links between PPD and PTD and skin contact reactions and allergies and stated that 18.1% of hairdressers and 20.3% of end users who exhibited a reaction to PPD due to contact dermatitis.  They stated the study also showed that 19.6% of hairdressers and 22.6% of end users also reacted to PTD.

1. They stated that the skin sensitivity problems experienced by hairdressers and end users through traditional permanent hair colours had been addressed by IGORA Senea and that it was an innovative product that had been specifically formulated to reduce the irritation and allergy potential as much as possible.  The stated that the use of ammonia had been dispensed with altogether and had been replaced with a another alkalising agent, which had the benefit of not being volatile.   They stated that the concentration of hydrogen peroxide had also been reduced significantly. They stated that the most important factor however was the removal of PPD and PTD.  They stated that these replacement substances were selected from toxicological assessments and from hair dyes that had been assessed by the European Centre for Allergy Research Foundation (ECARF) for their allergenic potential.  They stated that only those hair dyes that had been recommended by ECARF dermatologists had been used in IGORA Senea.   They provided ECARF certificates which they stated covered all of the hair dye ingredients used in IGORA Senea.   They stated that, in addition to the use of independently certified hair dyes, multiple comprehensive tests had been carried out on IGORA Senea  through trials on individuals  to determine the suitability of the product for all individuals, including those who had sensitive skin.   They stated that these trials included individuals with sensitive skin, those who had previously shown a reaction to hair dyes containing PPD and PTD and those who had previously not shown any such reaction to hair dyes containing those substances.   They stated that Henkel had carried out long-term in-use tests over 15 years on sufferers of PPD/PDT allergies who had reacted to conventional hair colourants with allergic contact dermatitis and believed the results demonstrated that out of 371 sufferers, 368 had tolerated the new range of products without any adverse reaction.  They added that the formulation had been recognised by ECARF, who were willing to licence Henkel to use their quality seal for allergy-friendly products and provided a letter from ECARF which included a statement that IGORA Senea products were allergy friendly.  

They also provided witness statements from two expert doctors working for Henkel who had examined the multiple tests which had been carried out over a number of years on the causes of skin irritation in permanent hair dyes. They stated that these tests had established the principal causes of skin reactions in hair dyes and that they also demonstrated that the IGORA SENEA formula which had been established by Henkel had resolved those issues.   In their statement one of these internal experts also stated that they had examined the multiple trials that had been carried out over a number of years and that those tests showed a very good compatibility even for persons with known skin sensitivity.  The expert also stated that this was supported by tests carried out on over 1200 consumers in which subjective reactions to skin comfort were also reported.  The second expert stated that the replacement in ingredients in IGORA Senea met the requirements to receive certification from ECARF and that the one ingredient which had scored lower that the others in terms of potency classification for sensitivity had still been given a certificate by the independent testing facility because of its superiority to PPT and PDT in terms of its sensitising potential.

2.  They stated that they had obtained recommendations from two leading institutions, both of which recommended IGORA Senea for use on sensitive scalps. They stated that both of these recommendations were based on substantial and comprehensive empirical studies which had been conducted over the course of many years and that the recommendations were not based merely on theory or purely on subjective knowledge of the scientists involved.  They stated that the recommendations were based on extensive research carried about between 1998 and 2010.  They believed the recommendations were therefore not only based on the work of the appraisers themselves but also on the extensive research work conducted by a large number of dermatologists involved in the project. They stated that in addition to the two reports from the expert institutions, an independent institute specialising in skin research called proDERM had also awarded its quality seal to the product and their report contained a statement that IGORA Senea was "dermatologically approved".    They provided details of the reports written by the dermatologists who had studied the data for IGORA Senea along with the full proDERM report.

3.  They stated that the ads referred to several ingredients, such as those commonly found in shampoos and conditioners, which were recognised for their moisturising and soothing properties.  They stated that Panthenol was well known for its moisturising properties and provided a report which examined how it acted in hair-care products.  They stated that it was well known that Aloe essence had healing and soothing properties and provided reports which they believed demonstrated that the plant had healing properties.  They stated that allantoin was also frequently used in personal care products and provided reports on the use of the product to retain moisture and as an anti-irritant. Finally, they stated that Bisabolol was known to have healing properties and provided a report which examined that.

4. They stated that it was common practice within the hair colour industry to use the claims "perfect white coverage" and "perfect grey coverage" for products which did not provide 100% grey/white coverage.   This stated that this was because it was impossible to guarantee perfect 100% coverage for every user, as different shades of colour would take differently  to grey and white hair.  They stated that IGORA Senea was a product which was sold solely to professional hairdressers in salons who would be aware that the term "perfect coverage" did not imply 100% coverage and that the ads in question had only appeared in trade magazines.     They believed the qualification "up to 90%", in relation to coverage of white hair, was a suitably worded qualification and that it did not contradict the claim "perfect coverage".   They also provided examples of other ads by providers of hairs which used the same or similar claims in their ads and stated that these products could not guarantee 100% coverage.

5. Henkel stated that the claim "you can offer an exciting new colour service to clients who've previously put up with scalp discomfort because there was simply no alternative" was not a claim that it was the only product on the market that was geared towards scalp comfort and that it recognised other such products were available.  They stated, however, that they believed IGORA to be a revolutionary product which offered something entirely new to the hair colourants market and that it offered a new and exciting alternative whereas previous hair colourants had caused irritation.   They stated that IGORA Senea was the only hair colour currently on the market which excluded the dye precursors PPD and PTD and that any potential irritation had been minimised further by omitting ammonia and by significantly decreasing the concentration of hydrogen peroxide.

Assessment

1. Not upheld

We noted Henkel had developed the IGORA Senea range over a number of years following the apparent need to develop hair dyes for use in professional hairdressers for those individuals who suffered skin irritation following exposure to some existing professional hair dyes.  We understood from the evidence presented by Henkel that the two main causes of skin reactions to hair dyes had been identified as being the PTD and PPD pre-cursers along with ammonia and noted the Senea range of hair dyes did not include these irritants.  We also understood another major irritant was a high concentration of hydrogen peroxide and noted Henkel had developed a significantly lower concentration of this oxidising agent for use in the range.  We noted independent experts had carried out numerous studies on the IGORA Senea range over a number of years and that these tests had been carried out on both hairdressers (to examine skin reactions that may occur when coming into contact with dyes as an occupational hazard) and on consumers.  We noted tests were carried out in both groups of individuals who had previously shown a skin reaction to standard hair dyes (which included the irritants Henkel had identified) and those who had not.  We also noted trials had been carried out on individuals who were known to have "sensitive scalps".   We noted the expert analyses which examined the various trials stated that there were very low skin irritation reactions to the IGORA Senea hair dye in all test groups and that the results were likely to be statistically significant.    

We noted although the witness statements were in line with those assessments made by independent testing centres, those analyses were carried out by experts who were employed at Henkel and that, whilst making a legal declaration that their statements were true, could not be considered to be independent for the purposes of substantiating claims for the appropriateness of Henkel products for consumers with sensitive scalps.    

Finally, we noted each of the individual ingredients contained within the IGORA Senea range had been certified suitable for use in a hair dye by the European Centre for Allergy Research Foundation (ECARF).  

Based on the submitted evidence we considered that the claims "… it helps reduce and prevent discomfort from delicate scalps", "It's also perfect for tempting back lapsed colour clients who've stopped colouring their hair due to bad experiences with irritation or discomfort", "Specially formulated for delicate scalps", "Specially formulated for delicate scalps" and "HIGH SCALP COMFORT" had been substantiated and therefore concluded that the ads were not misleading.

On this point we investigated ads (a), (b) and (c) under CAP Code (Edition 12) rules 3.1, 3.3 and 3.7 (Misleading advertising),  12.1, 12.5 and 12.9   (Medicines, medical devices, health-related products and beauty products) but did not find them in breach.

2. Not upheld

We noted the Henkel had supplied reports from expert dermatologists who had analysed multiple trials on IGORA Senea and that they believed the trials demonstrated that the IGORA Senea range was suitable for sensitive scalps and could be recommended accordingly.  We also noted ads (a), (b) and (c) included the proDERM seal of approval and that ad (a) also included a direct quote from the certificate of approval.  We therefore considered that the ads made clear that proDERM was one of the sources of the "recommended by dermatologists" claim. We considered that, based on the evidence presented the claim "recommended by dermatologists to be used on sensitive scalps" had been substantiated.  We therefore concluded that the ads were not misleading.

On this point we investigated ads (a), (b) and (c) under CAP Code (Edition 12) rules 3.1, 3.3 and 3.7 (Misleading advertising), 3.9 (Qualification), 3.11 and 3.13 (Exaggeration), 3.38 (Other comparisons), 12.1, 12.5 and 12.9 (Medicines, medical devices, health-related products and beauty products) but did not find them breach.

3. Upheld

The ASA noted Henkel's statements that D-panthenol, aloe essence, allantoin and bisaboldol had been shown to have moisturising and soothing and that they had provided evidence of how the properties of those substances had been tested individually and how they had been used, more widely, in other cosmetic products. However, we considered that in order to substantiate the claims, Henkel would need to demonstrate that each of these individual substances had the same properties when used alongside or following the chemical components contained within IGORA Senea.  Because Henkel had not provided evidence that demonstrated that "Panthenol delivers necessary moisture and helps to balance hair and scalp moisture content", "Aloe essence and panthenol reinforce the hair and scalp's moisture content" and "Allantoin and bisabolol help to sooth discomfort on delicate scalps and panthenol adds necessary moisture" we considered that the claims had not been substantiated and concluded that the ads were misleading.

On this point ad (a) breached CAP Code (Edition 12) rules 3.1, 3.3 and 3.7 (Misleading advertising), 3.11 and 3.13 (Exaggeration) and 12.1 (Medicines, medical devices, health-related products and beauty products).

4. Not upheld

We noted the ads (a), (b) and (c) contained the claim "Perfect white coverage" or "Perfect Grey Coverage" and that all three ads qualified this with the claim "90% coverage". We understood that all three ads appeared in publications that were aimed specifically at hairdressers and considered that those individuals would understand "90% coverage" to be a claim about the quantity of hair coverage achieved by the dye and the references to "perfect" as a claim about the quality of that coverage. We therefore considered that the claim "90% coverage" qualified rather than contradicted the claims "Perfect white coverage" and "Perfect grey coverage" and concluded that the ads were not misleading.

On this point we investigated ads (a), (b) and (c) under CAP Code (Edition 12) rules 3.1, 3.3 and 3.7 (Misleading advertising) and 3.9 (Qualification) but did not find them breach.

5. Upheld

We noted Henkel's belief that the claim "you can offer an exciting new colour service to clients who've previously put up with scalp discomfort because there was simply no alternative" was accurate and that it was not a claim that it was the only product on the market that was geared towards scalp discomfort.  However, we considered that the hairdressers to whom the ad was targeted were likely to interpret the text "there was simply no alternative" as a claim that there were no other hair colourants available to UK hairdressers which could reduce scalp discomfort and considered that Henkel had not provided evidence to demonstrate that this was the case. Because we considered that the claim implied no permanent hair dye products were available for sensitive scalps, we concluded that ad (a) was misleading.

On this point ad (a) breached CAP Code (Edition 12) rules 3.1, 3.3 and 3.7 (Misleading advertising), 3.9 (Qualification), 3.11 and 3.13 (Exaggeration), 3.38 (Other comparisons), 12.1 (Medicines, medical devices, health-related products and beauty products.

Action

Ad (a) should not appear again in its current form.    

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