Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Rule 3.7 requires marketers to hold documentary evidence for their claims before submitting a marketing communication for publication. Rule 12.1 echoes that requirement and states that substantiation will be assessed on the basis of the available scientific knowledge. Although it states that marketers should provide trials conducted on people only “if relevant”, CAP’s experience is that efficacy claims for anti-ageing products need to be supported by tests on people. In-vitro trials have frequently been dismissed as inadequate (Avon Cosmetics Ltd, 17 January 2007, and Clarins (UK) Ltd, 15 August 2007).
The ASA and CAP have spent many years assessing claims for beauty creams and there is an established line on what is and is not likely to be acceptable. Sensory claims or those based on consumer perception tests, such as “look fresher”, “skin feels smoother”, “for more radiant-looking skin” or “80% of women thought their skin felt firmer and looked more toned” are low-risk and relatively easy to substantiate. But marketers should avoid confusing readers by trying to support an objective claim using subjective feedback, for example, “82% decrease in wrinkles*… *based on 52 customer responses”.
In isolation, describing a product as an “anti-ageing” or an “anti-wrinkle” cream is unlikely to be a problem, especially if the context of the ad explains that the effects are temporary. So, an ad that states the cream can reduce the appearance of fine lines and wrinkles is likely to be acceptable, but an ad that states or implies the product will have an anti-ageing or an anti-wrinkle effect is not. See “Anti-ageing creams” and “Claims in product names”
Marketers wanting to make new or breakthrough claims must collate sound data to form a body of evidence. That body of evidence will usually need to include at least one controlled human experimental study. See the CAP Help Note on Substantiation for Health, Beauty and Slimming Claims for detailed guidance on the amount and type of evidence on the efficacy of their product the ASA would ask marketers to hold. The Copy Advice team can evaluate and advise on the likely acceptability of marketers’ substantiation, if necessary after consulting an expert.
Before submitting evidence to CAP, marketers should first ensure that their claims are legal under medicines law (Rule 12.1). If the Medicines and Healthcare products Regulatory Agency (MHRA) classes a product as medicinal, either by function or by presentation, marketers need to obtain a Marketing Authorisation from the MHRA before selling that product in the UK. Medicine law defines medicinal claims as those that suggest the product can treat or prevent a disease or restore, correct or modify physiological function by metabolic, pharmacological or immunological means. The MHRA Borderline Section can advise whether a product is medicinal and can be contacted at: Borderline Section, MHRA, Market Towers, 1 Nine Elms Lane, London SW8 5N; Tel: 020 7273 0759; Fax: 020 7273 0439 or by e-mail at [email protected].
A temporary effect
In general, cosmetic claims tend to be those that an average consumer would regard as relating to temporary improvements in one’s appearance. A claim that implies that a cream can change the structure of the skin, for example by reducing or even removing wrinkles (either immediately or over time) or penetrating the blood-stream beneath the skin, could be a physiological claim and might therefore be unacceptable. See “Anti-ageing: Physiological effect”.
An ASA ruling in September 2007 gives good guidance on what is likely to be considered a physiological claim. For example, claims to “Stimulate natural cell renewal”, “boost skin’s natural structure” or “promote skin regeneration” were considered unacceptable (The Body Shop International plc, 26 September 2007).
Marketers should not exaggerate the effect their product is likely to have on the skin. While favourable lighting for example, is often used in anti-wrinkle cream advertisements, the ASA has upheld complaints where the post production re-touching of photographs has been considered to give a misleading impression about the results a product is likely to achieve on the model shown (L’Oreal (UK) Ltd, 1 Feb 2012, The Higher Lifestyle, 4 January 2012, Procter & Gamble Ltd, December 2009). See “Cosmetics: The use of production techniques”.
Although many of the anti-ageing claims we see relate to skin creams, other products, such as lasers, pills and supplements, chemical peels and facial fillers make similar claims. The Copy Advice team has also been asked whether complementary therapies, such as acupuncture and massage, can claim to have “anti-ageing” effects. To date, neither CAP nor the ASA has seen evidence that acupuncture nor massage can slow down, reverse or relieve the superficial signs of ageing. See other entries on “Anti-ageing” and “Lasers”.
The CAP Code also states that marketers should not: encourage consumers to use products to excess and must hold proof before suggesting their product or therapy is guranteed to work, is absolutely safe or without side-effects (rule 12.9), even if a product is “natural” or omits an ingredient in common use (Rule 12.10).
Marketers should not refer to the relief of symptoms or the superficial signs of ageing unless they can prove this (Rule 12.7); use unqualified claims such as “cure” or “rejuvenation” (Rule 12.7); . Claims about the action that a cosmetic has on or in the skin should distinguish between the compositio of the product and the benefits achieved through its application, such as massage (Rule 12.22). Marketers should not refer to theprevention, delaying or masking of premature ageing in anything other than in temporary terms (Rule 12.22.1).
See Anti-ageing creams, Anti-ageing: Physiological effect, Anti-ageing: Pills and supplements, Anti-ageing: Chemical peels, Anti-aging: Treatments using fillers, Anti-ageing: "Non-surgical" and "surgical" type claim,other “Anti-ageing entries” and Medicinal claims.