Background
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA). On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025.
Given that the complaints which formed the subject of this ruling were received before 7 April 2025, the ASA considered the ads and complaints under the wording of the rules that existed prior to 7 April 2025. The Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Summary of Council decision:
Three issues were investigated, of which one was Upheld and two were Not upheld.
Ad description
A product listing for the “MELA B3 CLEANSER FOR DARK SPOTS” on the La Roche-Posay website, www.laroche-posay.co.uk, seen on 11 December 2024, featured images of the product and its packaging. One of the images included text that stated “MELASYL FIGHT HYPERPIGMENTATION. A NEW MODE OF ACTION LIKE NEVER BEFORE”. Small text below stated “Intercepts excess melanin at a different stage of its production”. Another image included text that stated “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*”.
The product description stated “MELA B3 Clarifying Micro-peeling gel is the new cleanser from the MELA B3 range, powered by multi-patented Melasyl […] Formulated with our new patented molecule Melasyl and Pure Niacinamide, our new range helps correct the look of even the most persistent dark spots and helps stimulate the skin’s natural cell renewal process. Hyperpigmentation Innovation: new multi-patented Melasyl active […] THE SCIENCE BEHIND Our new ingredient Melasyl has a new mode of action compared with referent dermatological actives: it’s a trapper of melanin precursors. Further text in the product description stated “La Roche-Posay is the No. 1 Dermatologist recommended brand in the UK** **Study of 73 Consultant Dermatologists Jan-April 2023.”
The footer of the page included, near the top, the text “Proudly the No1 Dermatologist recommended brand in the UK*”. Further down in the footer, text stated “LA ROCHE-POSAY IS THE NO.1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK: Study of 78 Consultant Dermatologists Jan-April 2024. For more info visit.”
Clicking on the “For more info visit” link, took consumers to a page that stated “NUMBER 1 CLAIM REPORT La Roche-Posay is the no.1 Dermatologist recommended brand in the UK*. Claim Report can be viewed here”. Clicking on that link took consumers to a PDF with the heading “International Dermatologists Barometer (wave 6 – 2024) = LDB brand claim report for UK”.
Issue
Beiersdorf UK Ltd challenged whether the following claims were misleading and could be substantiated:
- “A NEW MODE OF ACTION LIKE NEVER BEFORE”; and
- “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*”.
- They also challenged whether the claim “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*” was verifiable.
Response
1. L'Oréal (UK) Ltd t/a La Roche-Posay highlighted that the full claim stated “Hyperpigmentation Innovation: new multi-patented Melasyl(TM) active. Fight Hyperpigmentation. A new mode of action, like never before”. That claim was supported by the statement “Intercepts excess melanin at a different stage of its production before it marks the skin”. They said that this claim was intended to introduce Melasyl as a novel ingredient and to differentiate it within the marketplace. It was not a comparative superiority claim. The claim introduced the innovation of the Melasyl active and explained that Melasyl fought hyperpigmentation. The line immediately after explained that the ingredient, Melasyl, had a new mode of action, like never before. Neither the full claim, nor the supporting statement implied or mentioned that the product was superior compared to other products.
They considered that consumers were likely to interpret the full claim and supporting statement as highlighting a new ingredient in both its novelty and its distinct mode of action, without asserting or implying that the product was superior to other products. In their view, the phrase “like never before” was linked to the different, though not superior, mode of action, as shown by the added explanatory text.
They asserted that while various factors contributed to hyperpigmentation, the underlying biochemical pathway remained consistent. Melanin production involved a series of chemical reactions, and inhibiting any step within this pathway could mitigate hyperpigmentation. Their research confirmed that no other hyperpigmentation active currently on the market targeted the same stage of the biochemical pathway as Melasyl. To substantiate that no other actives worked via the same mode of action, they had carried out research of existing scientific literature, patents, and ingredients as well as cosmetic products available globally on the market to analyse all known hyperpigmentation actives and their respective modes of action.
They provided copies of six studies (including three randomised, blinded clinical trials) and translated copies of two patents they held in relation to depigmenting keratin materials using thiopyridone compounds. They said that Melasyl worked by capturing melanin precursors before they transformed into visible pigments. This was different from traditional ingredients that primarily focused on inhibiting tyrosinase, the enzyme that catalysed melanin production. To support this claim, they provided a clinical study which discussed 2-Mercaptonicotinoyl glycine’s unique mode of action which consisted of binding with melanin precursors therefore avoiding their integration into growing melanin pigments. They said that they could confirm that there were no other actives that provided efficacy in this mode of action and the ingredient was a proprietary active owned and patented by L’Oreal. It was newly used in their 2024 formulation, and this type of active had not been used before. There were no other products which used thiopyridone compounds on the cosmetic market.
2. L’Oreal said the “No 1” claim was based on surveys of dermatologists and always appeared alongside a reference to the relevant survey. That ensured consumers would understand that the claim was based on research and avoided any confusion as to other possible interpretations of the claim.
They noted that when the ad was first seen by the complainant in September 2024, the claim “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*” was based on 2023 data, as referenced in the footnote “Study of 73 Consultant Dermatologists Jan-April 2023”. A new study had been conducted between January and April 2024 to ensure that their continued use of the claim relied on up-to-date substantiation. After September 2024, the ad had been updated to refer to a “Study of 78 Consultant Dermatologists Jan-April 2024”. A link took website visitors to further information which explained the basis of the claim.
The data was collected as part of their annual “Dermatologist Barometer” survey, conducted on their behalf by an independent research agency. It was a quantitative study with a respondent base of 78 consultant dermatologists in the UK (out of a possible total of 747), which represented a sample size of 9.9%. The respondents were recruited by third-party dermatologist panel partners based on several criteria, which included that they must be consultant dermatologists with relevant professional certification. A representative sample was achieved through hard quotas for practice settings and soft quotas for age and gender.
The claim reflected the results from the question: “Which is the dermo-cosmetic brand that you recommend or prescribe the most?”, which was asked before the survey referenced any brands or products. There were no limits set on which brands participants could name in response. They provided the results of the spontaneous recommendations of the participants, from 2023 and 2024, which demonstrated that La Roche-Posay was the number one response.
L’Oreal considered that given the methodology, sample size and La Roche-Posay’s lead over other brands in both 2023 and 2024, as well as the fact that the study was conducted by an independent agency, the claim was substantiated and therefore not misleading. They considered that the base size, which consisted of almost 10% of all UK dermatologists, was significant, robust and representative. They also pointed to the considerable lead between La Roche-Posay and the second-highest recommended competitor. The survey data was tested by their third-party agency and indicated that La Roche-Posay had a statistically significant lead over the nearest competitor at a 95% confidence level.
They acknowledged there was a 49% overlap between the 2023 and 2024 respondent groups. They said, however, that some overlap was unavoidable due to the limited number of potential participants. They considered that the overlap did not appear to have notably affected the results, because La Roche-Posay’s share had decreased between the 2023 and 2024 surveys.
They also provided a full breakdown of results, including specific figures for overlapping, new and total respondents. Regarding the potential of bias, they said that respondents were informed at the end of the survey that the data was collected on behalf of L’Oreal, in order to comply with data protection laws. However, they did not consider that this would have influenced the respondents, as it was only made known at the end of the study. They also provided a letter from an independent market research provider specialised in the healthcare sector, which they believed affirmed the surveys’ robust methodology and statistical significance.
3. They were aware of the requirement to ensure that comparative claims were verifiable. They had made available the substantiation for the claim on their website, which stated "LA ROCHE-POSAY IS THE NO. 1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK: Study of 78 Consultant Dermatologists Jan-April 2024. For more info visit". The link then directed consumers to a summary of the substantiation.
They had reviewed how the supporting information for the claim was presented. While they did not believe that the claim was misleading, they wanted to ensure that consumers would not misunderstand their claims in the way the complainant had. They had therefore taken additional steps, after the ASA contacted them, to make the substantiation more easily accessible by moving the footnote that referenced the research study to immediately underneath the claim. Further, they had changed the wording from “for more info visit” to “to verify this claim, click here”. Finally, they had created a ranking table with the key results achieved by the top three performing brands from the research.
Assessment
1. Not upheld
The ad featured an image that included the ‘breakthrough’ claim “MELASYL FIGHT HYPERPIGMENTATION. A NEW MODE OF ACTION LIKE NEVER BEFORE”. Small text below that claim stated “Intercepts excess melanin at a different stage of its production”. Further down the page, the product description stated “the new cleanser from the MELA B3 range, powered by multi patented Melasyl […] Formulated with our new patented molecule Melasyl […] Hyperpigmentation Innovation: new multi-patented Melasyl active […] Our new ingredient Melasyl has a new mode of action compared with referent dermatological actives: it’s a trapper of melanin precursors”.
Beiersdorf UK Ltd, the complainant, believed that because the ad included a breakthrough claim, it implied the superiority of the MELA B3 cleanser over other products in the field of hyperpigmentation treatment. However, the ASA considered that consumers would understand the claim “A NEW MODE OF ACTION LIKE NEVER BEFORE” to mean that the cleanser, and its active ingredient Melasyl, worked in a different, rather than superior, way to other products marketed for the treatment of hyperpigmentation. We therefore expected to see evidence substantiating that interpretation of the claim.
We reviewed La Roche-Posay’s response, which included studies, plus clinical trials, on Melasyl’s efficacy. We considered that some of the evidence had limitations, the specific details of which they requested we treat as confidential, because it contained commercially sensitive information related to the content of the studies. We noted that the evidence focused on the active ingredient in the MELA B3 products, Melasyl, also known as 2-Mercaptonicotinoyl glycine (2-MNG). We understood that unlike other melanin inhibitors on the market, including those targeting tyrosinase, 2-MNG operated by reacting with melanin precursors to prevent melanin overproduction. Because of this, we were satisfied that 2-MNG intercepted melanin at a different stage than other commercially available hyperpigmentation products. We understood that was a new mode of action to treat hyperpigmentation and therefore concluded that the claim, as it would be interpreted by consumers, was adequately substantiated.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.33 (Comparisons with identifiable competitors) and 12.1 (Medicines, medical devices, health-related products and beauty products), but did not find it in breach.
2. Not upheld
The CAP Code required advertisers to hold documentary evidence to substantiate claims that consumers were likely to regard as objective and capable of objective substantiation.
The ad included the claim “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*”. We considered that consumers would understand the claim to mean that La Roche-Posay was recommended by dermatologists in the UK more than any other brand. We therefore expected to see evidence substantiating that comparative claim.
La Roche-Posay provided data from two surveys: “Study of 73 Consultant Dermatologists Jan-May 2023” and “Study of 78 Consultant Dermatologists Jan-April 2024”, as well as supplementary data from similar surveys La Roche-Posay had conducted in 2022 and 2025. The first survey supported the claim at the time the ad was seen by the complainant. The surveys were conducted by an independent agency and participants were recruited by a third-party dermatologist panel.
Firstly, we assessed the survey methodology, including the information provided by the market research agency. We noted that there was a proportion of participants who had responded to both the 2023 and 2024 surveys, and we considered that had the potential to bias the results. However, we reviewed the composition of the survey participants from 2022 to 2025, as well as their responses, and we were satisfied that the results were not biased by including those overlapping participants in multiple surveys and that the methodology was robust.
The complainant was concerned that the sample size of the dermatologists surveyed, 73 (for 2023) and 78 (for 2024), out of a possible total of 747, was too small to adequately support the claim. However, we noted that there was a considerable lead by La Roche-Posay over the second most common answer, which indicated that the results of the study were statistically significant.
We next assessed the survey question, and its responses, which were used as the basis for the claim. The claim reflected the respondents’ answer to the question “Which is the dermo-cosmetic brand that you recommend or prescribe the most?”, which was asked before the survey referred to any specific brands or products. It was also asked in a spontaneous, and unprompted manner. We considered that the brand most frequently named was likely to be the one most actively recommended or prescribed in practice by those dermatologists. For both years, La Roche-Posay was the most frequently named brand to this question. We therefore considered the survey question reflected the claim as consumers would understand it.
For the above reasons, we concluded that the claim was adequately substantiated and therefore not misleading.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.33 (Comparisons with identifiable competitors), but did not find it in breach.
3. Upheld
The CAP Code required that comparisons with identifiable competitors must objectively compare one or more material, relevant, verifiable and representative feature of those products. For comparisons to be verifiable under the Code, the advertiser should set out the basis for the comparison and sufficient information to allow it to be checked in the ad itself, or signpost in the ad how the information used to make that comparison could be checked by the target audience themselves, including in instances where the claim had been substantiated as above. Marketers should be explicit about how readers could verify a comparison; merely including a website or postal address, without stating that was where consumers could verify the comparison, was unlikely to be sufficient.
The claim “N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*” appeared in one of the images in a carousel at the top of the webpage. Further down, in the product description, text stated “La Roche-Posay is the No. 1 Dermatologist recommended brand in the UK** **Study of 73 Consultant Dermatologists Jan-April 2023.” We considered that the reference to the survey, which appeared at the bottom of the product description, was not clearly connected to the initial claim that appeared in the image at the top of the page. Additionally, while the text in the product description indicated the claim was based on a survey, it did not signpost to consumers where they could find information to verify the claim.
We noted the ad did include a signpost to where consumers could find information to verify the claim “LA ROCHE-POSAY IS THE NO.1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK: Study of 78 Consultant Dermatologists Jan-April 2024. For more info visit [link]”. However, that text appeared partway down the long footer of the page, which was itself visible only after website users scrolled past several product reviews. We considered the text was not clearly connected to either the initial claim in the image or the claim in the product description and was therefore likely to be overlooked by website users.
We acknowledged that following the “For more info visit” link took website users, through a further webpage, to verification information for the claim. We further noted that the information made available to consumers for verification purposes related only to the survey undertaken in 2024, whereas the claims in the ad related to surveys undertaken in both 2023 and 2024.
Notwithstanding our conclusion on Point 2 about the substantiation for the claim, we therefore concluded that the ad did not adequately signpost consumers to where they could find information to verify the claim and this therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 3.35 (Comparisons with identifiable competitors).
Action
The ad must not appear again in its current form. We told L'Oréal (UK) Ltd t/a La Roche-Posay to ensure that they provided sufficient information to enable consumers to verify comparisons with identifiable competitors, or signposted consumers to such information.
