The ad appeared in January 2021, and we therefore assessed it under the Code rules interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
A post on Revive Collagen’s Instagram on 5 January 2021, for a food supplement, included the text “How beautiful does Gaynor look after just 12 weeks using Revive Collagen, lines and wrinkles have drastically reduced. Her skin has become more plump, hydrated and her skin tone has improved. Your [sic] just one click a way [sic] from changing your skin forever”. The post also featured a ‘before’ and ‘after’ image of a woman. In the ‘after’ image her skin was significantly brighter and appeared to have fewer wrinkles, lines and sunspots.
The complainant challenged whether the ad exaggerated the performance of the product, and whether the following claims breached the Code:
1. Her skin has become more […] hydrated”; and
2. “lines and wrinkles have drastically reduced”, “Her skin has become more plump” and ““her skin tone has improved”.
ResponsePBO Skincare Ltd t/a Revive Collagen responded that the claims were from a testimonial. They provided a signed statement from their customer to show that the testimonial was genuine.
According to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims (the EU Register) could be made in ads promoting foods. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims register (the GB Register) were permitted. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
The ASA understood that the function of skin was to provide a permeable barrier against the external environment. We considered that claims which stated or implied a beneficial physiological effect on or change to the structure of the skin to aid in its function of providing a barrier were health claims for the purposes of the Regulation. In contrast, claims which related to improvements in appearance or maintenance of normal appearance of the skin did not refer to a beneficial physiological effect on a specific function of skin and therefore were cosmetic claims, rather than health claims. The Regulation therefore did not apply to cosmetic claims. We considered that assessing whether claims were health claims or cosmetic claims required an assessment of the specific claims made and the overall context of the ad.
We considered the claim “Her skin has become more […] hydrated” would be understood by consumers to mean that using the product would make their skin more hydrated, and therefore that it would have a beneficial effect on a function of the skin, in particular by protecting the skin against dehydration which aided in its function of providing a barrier. We therefore considered that the claim “Her skin has become more […] hydrated” was a specific health claim for the purposes of the Code.
Only specific health claims that were authorised on the GB Register were permitted under the Code, but we had not seen evidence that the claim was authorised on the GB Register. Because the claim “Her skin has become more […] hydrated” was a specific health claim which was not authorised, it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm. (Foods, food supplements and associated health and nutrition claims) and 15.7 15.7 Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1 15.1 Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration. 1 above. Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim as specified in the EU Register. (Foods, food supplements and other vitamins and minerals).
The claims “lines and wrinkles have drastically reduced” and “more plump” were presented alongside a ‘before’ and ‘after’ image which showed noticeably brighter and less wrinkled skin. The claims were also preceded with the text “How beautiful does Gaynor look after just 12 weeks using Revive Collagen”. We considered that consumers would understand the claims to mean that using Revive Collagen would improve the cosmetic appearance of the skin, rather than claims that there would be a beneficial physiological effect or change to the structure of the skin to aid in its function of providing a barrier.
We considered that the claim “her skin tone has improved”, and the generally brighter and more even skin tone shown in the ‘after’ photo, referred to the general appearance of the model’s skin, and therefore did not refer to a beneficial physiological effect of the product on the skin.
We therefore need to see evidence that the product was effective in reducing lines and wrinkles, making the skin plumper, and improving skin tone. We considered that consumers would understand the claims, taken alongside the ‘before’ and ‘after’ image and the claims “Look at how beautiful Gaynor looks” and “change your skin forever” to mean that sustained use of the product over a period of time would results in a continued cosmetic improvement in the appearance of their skin. We acknowledged that the claims were from a testimonial, which Revive Collagen had provided evidence was genuine. However, we considered that a testimonial was not adequate as evidence to substantiate the claims. We needed to see evidence that demonstrated the efficacy of the product including scientifically robust studies. In the absence of such evidence, we concluded that the claims had not been substantiated and were therefore misleading.
On that point, the ad breached CAP Code (Edition 12) rules
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.
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. (Medicines, medical devices, health-related products and beauty products).
The ad must not appear again in its current form. We told PBO Skincare Ltd t/a Revive Collagen to ensure that their future advertising did not include specific health claims that were not authorised on the GB Register and to ensure that they held robust evidence to substantiate cosmetic claims.