All cosmetic, toiletry and perfumery products placed on the market in the UK (and throughout the EU) are regulated by European legislation, the Cosmetics Regulation (EC) No. 1223/2009, the purpose of which is to ensure that the products are safe to use.
But what about the efficacy of cosmetics? This Insight provides a broad overview of our position on skincare products. It goes without saying that you must hold appropriate and adequate scientific evidence to substantiate an efficacy claim, whether explicit or implied (rule 3.7 and 12.1 of the CAP Code).
CAP and the ASA do accept that products which contain moisturising properties can have certain cosmetic effects. In short, the top layer of the epidermis, the stratum corneum, plays a fundamental role in helping the skin contain moisture. The skin can absorb certain properties that it comes into contact with, but you should remember that the primary function of the skin is to act as a barrier. So be careful with claims like “absorbs up to X% of …” as this will need to be supported with robust product specific evidence.
It’s generally accepted that moisturising products can plump the skin with moisture, thereby reducing the appearance of wrinkles, however, not wrinkles themselves. Sensory claims like “skin feels softer and smoother” are nearly always acceptable. See Anti-ageing: General and Anti-ageing: Creams.
The key is to focus on the cosmetic effect of the product on consumers in general. If you are making a claim which goes beyond a simple cosmetic effect for the product, you should hold robust evidence to support it. In 2012, a complaint about an ad titled “Wrinkle Killer Snake Serum” was upheld for claiming that the product had “Temporary freeze-like effects on the face muscles”. The marketer went beyond claiming that the product could provide an established temporary moisturising effect because of the implication that it could provide a similar effect to injected fillers (MyCityDeal Ltd, 25 January 2012) See Anti-ageing: Physiological effect.
Claims like “fine lines and wrinkles appear reduced without make-up [or, after 4 weeks]” might imply a cumulative and/or persistent effect and should be supported with evidence which consists of clinical trials conducted on people, and tests conducted with multiple time points. Our Panel of Experts in the field of Dermatology produced guidance on the likely necessary test protocols for proving cumulative moisturisation:Test protocols for cosmetic ads.pdf
Be careful you don’t make a medicinal claim
Medicinal claims should not be made for cosmetic products. For example, acne is an adverse medical condition since it’s usually the result of a physiological function. If you wish to claim that your product can help with acne or spots, in the first instance, you should check with the MHRA about whether your product requires a marketing authorisation. In order to avoid the risk of making a medicinal claim for an unlicensed product, you could focus on the benefits of clean skin. When marketing a cleanser, you could restrict your claims to the benefits of cleaning away dirt, grime and bacteria that could cause spots. A cleanser will not usually have any effect on physiological function; for example, it shouldn’t interfere with hormone production, and this shouldn’t be implied. Other claims for cosmetic products which could land you in hot water include “for ingrowing hairs”, “razor burns”, “help clear out infected pores”, “anti-inflammatory”, “reduce swelling” and “help with treating the symptoms of psoriasis and eczema” (rules 12.1 and 12.2).
The claim “The only spot treatment with an anti-inflammatory” by one marketer promoting Freederm Gel was considered to be fine in context, because the product was a licensed medicine (Diomed Developments Ltd, 14 September 2011).
Words like “cosmeceuticals” should be avoided. A product can’t be both a cosmetic and a pharmaceutical, so avoid using words which will confuse consumers and which imply that a product has some sort of medicinal strength.
You should avoid claiming that a product can “protect the skin” from the sun, if it does not contain a sunscreen. The absolute minimum a product should contain is an SPF 15 (for UVB rays) and the product should contain adequate protection from UVA rays too (12.22.1). Otherwise, not only will this mislead, it is also likely to be considered irresponsible (1.3).
What’s in a name?
Finally, the name of a product may in itself be regarded as a claim and therefore be required to be substantiated. But you do have some flexibility. For example, claiming that a product can have an anti-ageing effect won’t be acceptable, however the claim “anti-ageing cream” might be fine, if it is used only to describe the product, and the ad makes clear the effect is a “reduction in the appearance of…”. See Claims in product names.
If you require bespoke advice on your non-broadcast promotions, contact the CAP Copy Advice team on 0207 492 2100 or submit your enquiry via our website.