Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A website for FACEB4 facial cleansing products, www.faceb4.com, seen in July 2015, included the claims “UK’S MOST EFFECTIVE ANTI-BACTERIAL FACE WASH” and “Clinically proven to be the UK’s most effective anti-bacterial facewash" on the home page.
DDD Ltd, who distributed Freederm products, challenged whether:
1. the claim FACEB4 was the “UK’s most effective anti-bacterial facewash” was misleading and could be substantiated; and
2. the claim “UK’s most effective anti-bacterial facewash” was verifiable.
1. Medichem International (Manufacturing) Ltd said that the claim “UK’s most effective anti-bacterial facewash” was based on independent tests which showed FaceB4 facewash was more effective at killing the spot-causing bacteria Propionibacterium acnes than all other leading anti-bacterial facewashes currently sold in the UK. This was stated on the back of the product packaging. They provided the two test reports.
2. Medichem said that the claim had been verified by the test reports.
The ASA considered that in the context of a website for facial cleansing products the claim “UK’s most effective anti-bacterial facewash” was likely to be understood by consumers to mean that the product was the most effective facewash compared to other facewashes that had an anti-bacterial action. We considered that “UK’s most effective” would be understood as a comparison with the whole market. The two studies provided by Medichem related to in vitro tests carried out by independent laboratories. However, the testing had only been carried out on leading competitors, and not against the whole market. We also considered that for an effectiveness claim for a facewash, we needed to see evidence that showed a perceptible benefit to users of the product. Although the tests submitted by Medichem seemed to show that the product killed a greater percentage of the bacteria when introduced to a bacterial suspension, we had not seen any evidence that such a difference in activity would lead to a perceptible difference in effectiveness for users of the product. Because the evidence provided did not substantiate the claim as it would be understood by consumers, we concluded that the claim was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 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. (Substantiation) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
The CAP Code required that comparisons with identifiable competitors were verifiable. This meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so. We considered that the comparative claim “UK’s most effective anti-bacterial facewash” would be understood as a comparative claim with the whole market and therefore with competitors which were identifiable. The ad did not direct consumers to any additional information regarding the comparison, including the basis for the claim and the methodology of the tests carried out. An additional page on the website listed the competitor products tested but did not detail the tests carried out. We did not consider that the ad allowed consumers or competitors to verify the comparison and therefore concluded that the claim breached the Code.
On this point the ad breached CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
The ad must not appear again in its current form. We told Medichem International (Manufacturing) Ltd not to repeat the claim “UK’s most effective anti-bacterial facewash”. We also told them that when making comparative claims they must ensure that they make verification information available.