Summary of Council decision:
Two issues were investigated, of which one was Upheld and the other Not upheld.
A TV ad and a radio ad for Garnier Ambre Solaire Sensitive Advanced Kids sun cream:
a. the TV ad seen on 12 June 2019, featured a voiceover which stated, "To protect your little architects, tumblers and divers, new Garnier Ambre Solaire Sensitive Advanced Kids has very high SPF, 5 star UVA protection and is water resistant but did you know we're also the only sun care brand partner of the European Cancer League". On-screen text stated "5-Star according to Boots rating system" and an image containing the text “UVA” alongside five stars was displayed.
b. the radio ad, heard on 25 June 2019, stated, "Your number one priority is your little ones. At Garnier Ambre Solaire, it’s ours too. So naturally, our newest Ambre Solaire Sensitive Advanced Kids formulas have very high SPF, five star UVA protection and are water resistant. But did you know we’re also the only sun care brand with research recognised by the British Skin Foundation and partner of the European Cancer League? Not bad, hey? Garnier Ambre Solaire, we make the sun safer.”
The ASA received two complaints.
1. Both complainants, who believed that the product only provided three star UVA protection, challenged whether the claims that the product provided five star UVA protection in ads (a) and (b) were misleading and could be substantiated.
2. One complainant challenged whether the claim “We’re also the only sun care brand partner of the European Cancer League” in ad (a) was misleading.
1. L’Oreal (UK) Ltd t/a Garnier said there was no legal or regulatory obligation for them to show a star ranking system for UVA protection. They said the Boots rating system had been adopted by most sun care retailers in the UK and measured the level of UVA protection as a ratio to the UVB the product provided. For a five-star rating, a product’s UVA performance had to be at least 90% as good as its UVB performance, and required a much higher UVA protection than the European Recommendation that UVA should be a third of the UVB protection. Garnier said that while the Boots rating system was effective in educating consumers, it was a commercial labelling system and not all sunscreens in the UK carried the star rating. They had reformulated their Ambre Solaire Sensitive Advanced products featured in the ads so that they now had a five star rating instead of their previous three stars. At the time the ads went to air, they estimated that the availability of the new products at their four biggest clients (which represented 70% of their business) was approximately 60%. Their online sales comprised only 10.4% of their sales, and they had not made the five-star rated products available to their online retailers until the previous three-star rated products had sold out, so as not to mislead consumers to their detriment. It was therefore possible that a consumer might receive a five star rated product instead of a three star product they believed they were purchasing but that ensured they did not purchase a three star rated product believing they had purchased a five star rated one. Clearcast said Garnier provided them with substantiation that the Garnier Ambre Solaire Sensitive Range had been awarded five stars by the Boots rating system. Clearcast asked Garnier to add the text which stated “5 star according to Boots rating system” to clarify exactly which system they were using so it was clear to the consumer. While they recognised that older versions of the product were only given three stars, all the products shown in the ad were rated five star. They thought that by stating "New Garnier Ambre Solaire Sensitive Advanced Kids" it was sufficient to convey to viewers of ad (a) that the product was different to the previous version. They said the ad then proceeded to outline the change to the new product which was an improvement of the cream's UVA rating.
Radiocentre provided a copy of a laboratory trial conducted to support the claim that the products were rated five star. They said that the words "our newest ..." in ad (b) made clear that the rating referred to the new formulation of the product and was sufficient for listeners to differentiate it from the old three-star rated product. They felt it was disproportionate for a radio ad to advise listeners to check the label before purchase on an issue which came down to stock control.
2. Garnier said they had an agreement in place with the European Cancer League since 2006 which allowed them to state that they were the only sun care brand that supported them. Clearcast said they received substantiation from Garnier that they had an ongoing relationship with the European Cancer league which started in 2006 and ran until 2021, which showed they were the only sun-care brand that supported them.
The ASA considered that consumers would understand from the claims that Ambre Solaire Sensitive Advanced products provided five-star UVA protection, and that if they bought one of those products either online or in-store they would be buying a product that provided that level of protection. The information provided demonstrated that the reformulated Ambre Solaire Sensitive Advanced products carried a five star Boots UVA protection rating, whereas the previous versions had been rated three stars. While not a universal marker of a product’s UVA protection, the Boots rating system had been in place since 1992 and was widely used in the UK to notify consumers of a product’s protection rating. We considered it was an appropriate rating system upon which to make such claims.
We understood that a significant proportion of the Ambre Solaire Sensitive Advanced products available either online or in-store at the largest retailers at the time the ad appeared were the previous three-star rated products. While each bottle stated the products rating, the packaging of the old products was almost identical to the new products shown or referenced in the ads.
We considered, therefore, that because the ad implied consumers who bought an Ambre Solaire Sensitive Advanced product would benefit from 5-star UVA protection, when in fact a significant proportion of those products available at the time the ad appeared had only a three star rating, the ads were likely to mislead.
On that point, the ads breached BCAP Code rules 3.1 and 3.2 (Misleading advertising).
2. Not upheld
In the context of an ad for products which protected consumers from sun-related conditions such as skin cancer, we considered that consumers would understand the claim “We’re also the only sun care brand partner of the European Cancer League” to mean that Garnier were the only company which sold sun protection products to have a relationship in place whereby they supported the initiatives of the European Cancer League (ECL). We understood from the information provided that an agreement was in place between Garnier and the ECL whereby the ECL received funding from Garnier to support their initiatives. We noted the complainant’s concern that the reference to that relationship implied an endorsement of the product from the ECL. However, we considered that the ads were unlikely to mislead consumers about the nature of that relationship. Consequently, we concluded that the claim was not misleading.
On that point, we investigated ads (a) and (b) under BCAP Code rules 3.1 and 3.2 (Misleading advertising), but did not find it misleading.
Ads (a) and (b) must not appear again in the form complained of. We told L’Oreal (UK) Ltd t/a Garnier to ensure that when previous versions of products which carried lower sun protection ratings were still available, their future advertising made that clear to consumers and advised them to check the label before purchasing.