ASA Adjudication on gumtree.com Ltd
8 August 2012
Internet (on own site)
Number of complaints:
We noted Gumtree.com Ltd had ceased trading with their daily deals business during the investigation.
Summary of Council decision:
Three issues were investigated all of which were Upheld.
A "Daily Deal" promotion on www.gumtreedeals.co.uk. Text stated "£45 for Four 24k Gold Collagen Masks and 10 ml Advanced Teeth Whitening Home Kit with Free Delivery from Miami White (was £99.95*). Give your skin an instant youthful glow and your teeth a brighter white with two great products from Miami White! The 24K gold collagen facial masks penetrate deep into the skin to remove signs of ageing and give the skin the moisture to boost its vibrancy ... Used weekly, these facial masks made from Nano mineral gold will go deep into the skin to provide high efficiency moisture, eliminating dull colour, and enhancing your skin an instant glow ...* Vendors normal price".
The complainant challenged whether:
1. the references to "24k gold" and "Nano mineral gold" were misleading and could be substantiated;
2. the claim that the product could "Give skin an instant youthful glow" and "go deep into the skin to provide high efficiency moisture, eliminating dull colour" could be substantiated; and
3. the "vendor's normal price" of £99.95 was genuine.
CAP Code (Edition 12)
1. Gumtree.com Ltd (Gumtree) stated that the merchant had provided them with an ingredient list for the collagen face mask product which included "Nano active gold" and that the merchant itself advertised the product as 24k gold both in store and on its own website. They believed it was therefore not misleading to state that a product ingredient was "Nano mineral gold".
2. They believed the ad did not make any medicinal claims and that there was no suggestion that the product could cure any ailment or condition. They also believed the ad did not describe any novel treatments or products or make claims that the statements were "clinically proven". They believed the wording was purely subjective and therefore did not require substantiation.. However, they stated that the claim that the product could "Give skin an instant youthful glow" was common promotional wording used within the skincare industry and was clearly a subjective sensory description of the potential effect of the product rather than an objective scientific claim. They believed consumers would therefore not interpret the claim as being one that was capable of objective substantiation. They believed their argument was strengthened further by the fact that the statement was not claimed to be "clinically proven".
They stated that the claim "go deep into the skin to provide high efficiency moisture eliminating dull colour" was not associated with any claim that the wording was based upon scientific tests or that any medical ailments could be cured. They believed the standard of scientific evidence was therefore reduced but provided details of the active ingredients in the product that had been provided to them by the merchant. They stated that the ingredients in the mask were commonly used in beauty products for the treatment of facial wrinkles and folds and believed this demonstrated the claims in the ad were not misleading. They provided details of the product ingredients and a description of what they believed their effect to be, including the a quote from an American news article by a cosmetic dermatologist who stated hyaluronic acid "forms a barrier on the skin and gives a soft moisturising effect that makes skin smoother". They stated that another ingredient, oat peptides, penetrated the skin's protective barriers to get into the deeper layers to assist in the collagen production in the skin and provided a scientific study which they believed demonstrated the effectiveness of oat peptides, including impacting on collagen levels associated with skin translucency.
3. They stated that the facemask normally retailed at £19.99 and the whitening kit at £59.99 and that obtaining the products from the offer (which included four masks and one whitening kit) at the normal price would result in a charge of £139.95. They provided details of the vendors own website where the products were sold along with screenshots which they they believed demonstrated that the savings claims presented in the ad were genuine.
Whilst the ASA considered that most consumers would understand there was no direct relationship between the gold carat percentage within the facemask and its inherent value, we noted the advertiser had not provided documentary evidence to demonstrate that the product did indeed contain "Nano active gold" or "24k gold". We therefore concluded that the reference to these ingredients was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
We considered that, if examined alone, the claim "Give skin an instant youthful glow" would be understood to relate to the immediate effects that could be achieved from the facemask product and understood it was generally accepted that facemasks could give facial skin an immediate and temporary appearance of brightness. However, in the context of the claims "The 24K gold collagen facial masks penetrate deep into the skin to remove signs of ageing and give the skin the moisture to boost its vibrancy" and "Used weekly, these facial masks made from Nano mineral gold will go deep into the skin to provide high efficiency moisture, eliminating dull colour, and enhancing your skin an instant glow ..." we considered that consumers would understand that the product had a more significant effect on the skin. We therefore considered that the challenged claims were objective claims that the product would remove signs of ageing, improve moisture content and improve tone and texture and were subject to the substantiation rules in the Code.
Whilst a list of effects associated with the ingredients contained in the product was provided, Gumtree did not provide documentary evidence to demonstrate that those effects would be achieved by these ingredients in the amounts contained in the product either separately or collectively.
The summary trial supplied by the advertiser examined the actions of oat peptides on human skin cells and reported a natural rejuvenation of collagen production. However, the trial did not provide full details of how the tests were carried out or demonstrate that the results were statistically significant. Furthermore, the trials were carried out on skin cells but not on the facial skin of human test subjects in conditions that would replicate how the product would be used by consumers and therefore did not demonstrate that any changes to the collagen production in skin cells would result in perceptible changes to the appearance of facial skin. Finally, we noted the ingredients in the trial did not replicate the full facemask product and therefore did not demonstrate that the oat peptides ingredient would have the same action on skin cells when used alongside other ingredients within the facemask.
We therefore concluded that the claims "Give skin an instant youthful glow" and "go deep into the skin to provide high efficiency moisture, eliminating dull colour" had not been substantiated and that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 12.1 (Medicines, medical devices, health-related products and beauty products).
We noted the screenshots provided by Gumtree stated that the two products referred to in the ad would cost £139.99 if buying directly from the vendor and considered that if additional documentary evidence showed that customers would normally be charged this amount as opposed to the £99.95 stated in the ad, the discrepancy was unlikely to mislead to the detriment of the consumer. However, Gumtree did not provide documentary evidence to demonstrate that the prices on the vendor's website were genuine selling prices and we therefore concluded that the price claim in the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.17 (Prices) and 3.40 (Price comparisons).
The ad must not appear again in its current form. We told Gumtree to ensure it held robust documentary evidence when making product efficacy and price claims in future ads.