A direct email from Space NK, received on 7 June 2016, with the subject line "Which suncream suits you best?" stated "WHICH SUNCREAM? Browse our pick of pioneering UV protectors, and find the formula that suits you best". Below this, a range of products were pictured, alongside brief descriptions and invitations to purchase. Two of the products shown were Institut Esthederm Bronz Repair (moderate sun) and Institut Esthederm Adaptasun Protective Body Lotion (moderate sun).
The complainant, who understood that the two featured products displayed no SPF or UVA protection ratings, challenged whether the description of the products as "suncream" and the implications that they would provide UV protection were misleading and could be substantiated.
Space NK provided a statement and supporting evidence from the manufacturer. It stated that Institut Esthederm (IE) sunscreens did not indicate the sun protection factor (SPF), and they were aware that this was contrary to the recommendations of the European Commission. However, the products were compliant in terms of the level of protection afforded and the information provided to consumers. IE noted that the SPF informed consumers of protection against UVB radiation, the main factor behind sunburn and DNA damage, and said they considered it was just as important to provide protection against UVA radiation, responsible for photo-aging and DNA damage. They stated that all their sunscreens protected skin from UVA and UVB radiation. IE also stated that their sunscreens were classified according to the level of protection provided with regard to the intensity of the sun, symbolised by 'two sun' and 'three sun' logos (moderate and strong sun). In doing so, IE said they followed the recommendations of the World Health Organisation, who recommended adapting the level of protection to the strength of the sun (by UV index) and skin type. IE stated that the SPF, UVA protection and critical wave length of all IE sunscreens were measured using the protocols in force. They provided three studies relating to Adaptasun and two to Bronz Repair.
Further, IE stated that controlled tanning could be used as a natural protection mechanism, complementary to SPF and UVA. They said tanning was the natural protection method developed by the skin to defend itself against the negative effects of the sun, and that melanin (the pigment responsible for tanning) was a natural UV filter. They provided a graph showing that the absorption of melanin was higher and more consistent than haemoglobin or water. IE also stated that melanin neutralised secondary effects before damage could occur, due to its anti-free radical properties and its ability to protect DNA. Compared with the passive protection provided by sunscreens, the protection afforded by tanning lasted much longer, including during bathing and rubbing of the skin. IE explained that melanin was mainly produced during exposure to UVB radiation. UVA radiation was not involved in this process, but played a predominant role in the risk of photo-aging. As such, it was possible to tan without aging the skin, as long as the correct amount of UVB radiation reached the skin and stimulated melanin production whilst UVA radiation was filtered or neutralised and other ingredients protected against free radicals and DNA damage. IE said their tanning sunscreens neutralised the risk of photoaging and optimised tanning so the user could tan better with less sun, allowing reduction of exposure time.
The ASA considered that consumers would understand the references to "suncream" and the phrase "UV protectors" to mean that all the products featured in the email were capable of providing meaningful levels of protection from the sun's UV radiation, including the two Institut Esthederm products. We understood that the most common way of expressing the level of protection afforded by a product was by using an SPF (which was concerned with UVB protection and stated how much longer skin could be exposed without burning in comparison to untreated skin) and a UVA rating (which usually indicated what proportion of the SPF was also relevant to UVA radiation). We considered that consumers would broadly understand “suncream” to be a product that protected against sunburn and its associated damaging effects and, in this context, would expect the featured products to at least provide protection from UVB rays. We did not consider that, from the information in the ad, consumers would generally assume that the products also offered any specific level of UVA protection.
We understood that there were relevant ISO standards (and equivalents from individual countries) specifying methods for establishing the level of UVA and UVB protection and that, for a product offering protection from the sun, consumers would generally expect testing to have been carried out to this standard or a reasonable equivalent. We considered the evidence submitted.
The first trial relating to the Adaptasun product examined the degree to which skin darkened with use of 'Product A', 'Product B' and no product when irradiated over three days. The study concluded that a statistically significant darkening was observed a week after irradiation on the test patch for Product B. However, we had concerns about the methodology for the test, particularly noting that it was not clear whether the product in the ad was Product A or Product B. Moreover, although the study concluded that one product had efficacy in darkening, it did not demonstrate that this represented meaningful protection from UVA or UVB radiation, and we noted that it did not state compliance with any specific standards in assessing sun protection.
The second Adaptasun trial stated compliance with the relevant ISO standard for in vivo testing of SPF and examined the water resistance of the product by assessing its protective properties before and after immersion in water. The study concluded that, prior to immersion, the tested product had a mean SPF of 19 (with an acceptable confidence interval) and could be labelled as SPF 15 and water-resistant. The third trial stated it was carried out according to FDA requirements and measured the SPF of the product, concluding that it was 17.1 (at the lower bound of the relevant confidence interval), to be labelled as 17. In both tests, simultaneous testing of a standard reference product indicated that the test had been suitably calibrated.
The first trial relating to Bronz Repair stated compliance with the relevant ISO standard for in vivo determination of sunscreen UVA protection. The study concluded that the UVA protection factor (UVA PF) of the test product was 15.1 and had an acceptable standard deviation. The second trial stated compliance with FDA methodology and concluded that the mean SPF was 18.6, to be labelled as 17 to account for the relevant confidence interval. In both tests, simultaneous testing of a standard reference product indicated that the test had been suitably calibrated.
Both products had been subject to testing at nationally- or internationally-recognised standards that concluded they offered meaningful protection against UVB radiation, with Bronz Repair also being shown to protect against UVA radiation. We therefore considered that the claims “UV protectors” and “suncream” had been substantiated and concluded that the ad did not breach the Code.
We investigated the ad under 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), but did not find it in breach.
No further action required.