A banner ad and claims on a website for an anti-wrinkle cream and an anti-ageing cream.
a. A banner ad seen on 8 September 2011 featured a 'before' and 'after' photograph of a woman's face. In the before photograph, her face was wrinkled and she had dark circles around her eyes. In the after photograph, her complexion appeared smoother and lighter. Text beside the photographs stated "Middlesbrough: Mom Makes Botox Doctors Furious. Clever Mom Reveals £3 Trick to a Wrinkle Free Face. Shocking ...".
b. A website seen on 8 September 2011 featured the same two photographs under the heading "2 WEEKS. Actual unretouched photos." Text immediately beneath the photographs stated "The second picture is taken exactly 14 days after the first. Notice the strong difference after applying the Perfect Radiance Wrinkle Reducer & RevitaDerm Anti-Aging Serum". Claims on the page headlined "A MOM OUTSMARTS BOTOX DOCTORS WITH HER $4 TRICK TO A WRINKLE FREE FACE - SURPRISING 14 DAY RESULTS REVEALED" stated "Mary, an ordinary mom of three is the perfect example of a smart consumer that bypassed the health risks and thousands of dollars of using Botox to erase her wrinkles and ‘reverse the clock’ on life ... After watching a television documentary on Cell Revival technology, Mary discovered two beauty product trials from trusted skincare firms Perfect Radiance Winkle Reducer & RevitaDerm Anti-Aging Serum with Cell Revival technology to unlock the secrets of anti-aging. Her results are comparable to what you might attain at Medi Spas and Doctors offices for $3000 or more, all the while using nothing but free samples of Perfect Radiance and RevitaDerm free samples ... After finding Mary's [the woman featured in the photographs] shocking success story on the Internet, we thought it was important to share her story with our readers wanting to erase those wrinkles and ‘reverse the clock’ on life. The solution has not only removed her wrinkles, but also tightened her neck and face instantly".
At the bottom of the page, a disclaimer stated "The comments and opinions in this advertisement are provided by an actual customer of AuraVie and this is her true story ... It is with the customer's permission that her story and pictures are used. The comments are her actual opinion and impressions based on her use of the featured products. Purchasers of these products should not expect to achieve the exact same results as those described by the customer...".
The complainant challenged whether:
1. the efficacy claims for Perfect Radiance Wrinkle Reducer and RevitaDerm Anti-Aging serum were misleading and could be substantiated; and
2. the 'before' and 'after' photographs misleadingly exaggerated the effects that could be achieved by the products.
The Higher Lifestyle did not respond to the ASA's enquiries.
The ASA was concerned by The Higher Lifestyle's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to respond to our enquiries and told them to do so in future.
1. & 2. Upheld
We considered the 'before' and 'after' photographs and the claim which appeared in ad (a), "Clever Mom Reveals £3 Trick to a Wrinkle Free Face", and claims "A MOM OUTSMARTS BOTOX DOCTORS WITH HER $4 TRICK TO A WRINKLE FREE FACE", "erase those wrinkles", "reverse the clock" and "the solution has not only removed her wrinkles, but also tightened her neck and face instantly" which appeared in ad (b) were likely to be seen as efficacy claims for the product. Furthermore, we considered that the claims "2 WEEKS. Actual unretouched photos" and "The second picture is taken exactly 14 days after the first" made about the photographs in ad (b) were likely to be interpreted as claims that the product worked within two weeks. Consequently, we expected The Higher Lifestyle to hold robust, scientific substantiation which showed that the product could remove wrinkles and reverse the signs of ageing and that it could achieve the claimed results within two weeks.
We considered the efficacy claims made in the ad and on the website went beyond claims that the products could have an effect on the appearance of wrinkles. We considered claims that suggested products had an "anti-wrinkle" or "anti-ageing" effect would be understood to mean that the product could prevent wrinkles or prevent the signs of ageing. We therefore considered such claims were high level cosmetic claims and we noted that the ASA had not yet seen satisfactory evidence that applying cosmetic creams topically could have that effect. Similarly, we considered "reduced wrinkles", "removed wrinkles" and "wrinkle free" type claims implied that the product could reduce, remove or prevent wrinkles and we considered that those types of claims required the same high level of substantiation. Again, we noted that the ASA had not yet seen satisfactory evidence that applying cosmetic creams topically had those effects.
We noted that the disclaimer at the bottom of the website stated "... comments and opinions in this advertisement are provided by an actual customer of AuraVie and this is her true story" and "Purchasers of these products should not expect to achieve the exact same results as those described by the customer". We considered, however, that that disclaimer contradicted the efficacy claims made about the two products. We considered that the efficacy claims implied that the results were typical results and could be achieved by all who used the products.
We noted that the same website seen on 23 November used the same efficacy claims, photographs, testimonial and disclaimer as ad (b) but on that date, the claims referred to a different product, Essence of Argan Wrinkle Reducer, used with RevitaDerm Anti-Aging Serum. We noted that the disclaimer in ad (b) stated that Mary's comments and opinions were based on her use of the featured products: Perfect Radiance Wrinkle Reducer and RevitaDerm Anti-Aging Serum. Because the same claims and photographs appeared in relation to another product, Essence of Argan Wrinkle Reducer on a later date, we considered they raised doubt over whether the claims made in ad (b) were genuine.
We had not seen any evidence that the product could remove wrinkles or that it could lead users to have a 'wrinkle free' face or that it could reverse the signs of ageing. Additionally, we had not seen evidence that demonstrated that after 14 days, consumers would see an improvement in their skin to the extent of that shown in the photographs. We also noted that we had not seen any evidence that demonstrated that the 'before' and 'after' photographs were genuine and we did not know whether there had been any post production techniques used on the photographs. We were also concerned that exactly the same claims appeared at a later date but that they had been made about another product. We considered that the 'before' and 'after' photographs along with claims such as "actual unretouched photos", "SURPRISING 14 DAY RESULTS", "wrinkle free" and "the solution … removed her wrinkles" exaggerated the efficacy of the products. Because we had not seen any evidence to substantiate the claims, we concluded that ads (a) and (b) were misleading and breached the Code.
The banner ad and claims breached CAP Code (Edition 12) rules
Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code.
Marketing communications must not materially mislead or be likely to do so.
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease. and 12.7 12.7 References to the relief of symptoms or the superficial signs of ageing are acceptable if they can be substantiated. Unqualified claims such as "cure" and "rejuvenation" are not generally acceptable, especially for cosmetic products. (Medicines, medical devices, health-related products and beauty products).
The ad and claims must not appear again in their current form. We told The Higher Lifestyle not to make efficacy claims for their products unless they held robust evidence to substantiate them. We referred the matter to CAP's Compliance team.