Summary
Several recent Advertising Standards Authority ("ASA") decisions have illustrated the need for members of the cosmetics industry to be able to substantiate the claims made in relation to their products. In response to this the ASA has embarked on an initiative with the Consumer, Toiletries and Perfumery Association ("CTPA"), the objective of which is the creation of a common understanding, by which the claims made in relation to cosmetic products will be evaluated in a fair and consistent manner reflecting the rapid developments in cosmetic science, which acknowledges the consumer's need to be well informed of a products characteristics and to be protected from being misled.
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Summary
Several recent Advertising Standards Authority ("ASA") decisions have illustrated the need for members of the cosmetics industry to be able to substantiate the claims made in relation to their products. In response to this the ASA has embarked on an initiative with the Consumer, Toiletries and Perfumery Association ("CTPA"), the objective of which is the creation of a common understanding, by which the claims made in relation to cosmetic products will be evaluated in a fair and consistent manner reflecting the rapid developments in cosmetic science, which acknowledges the consumer's need to be well informed of a products characteristics and to be protected from being misled.
Background
The cosmetics industry is at the forefront of many scientific and technical developments, continually pushing boundaries as new and innovative products are developed. Consequently, the claims associated with cosmetic products are also evolving and subject to ever-closer scrutiny. In response to recent ASA decisions, the ASA has begun to focus its attention specifically on cosmetics advertisements, and in doing so have worked with the Cosmetics, Toiletries and Perfumery Association (CTPA) and Clearcast to develop industry specific guidance (Guidance).
The Guidance is based upon the need for the consumer to be well informed of product characteristics and is intended to help advertisers understand more clearly the framework in which cosmetic claims appear, and the way in which cosmetic claims may be classified. It sets out a framework for establishing how claims should be prepared, supported and assessed. It is widely hoped that the Guidance will rectify industry concerns regarding the fairness and consistency of the treatment afforded to cosmetic product advertisements. Some of the areas covered by the guidance include:
Definitions
The guidance emphasises the importance of a common understanding of the meaning of various terms such as 'cumulative effect', 'permanent effects' and 'physiological action'.
The heavily debated issue of where the line between cosmetics and pharmaceutical products should be drawn is also discussed. In European Commission guidance, a medicinal product is "any substance...used or administered... with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action." If a product's effect is not caused through one of these three actions, it is not a medicinal product. It is widely acknowledged that cosmetic products affect the physiology of the tissues to which they have been applied to a greater or lesser extent however; this does not make them medicinal products. To be a medicinal product such an effect must be more than insignificant. Over recent years new products have edged ever closer to the borderline with medicinal products, and medical devices, and there has been some concern over how to classify this new generation of products and thus ensure compliance with the relevant regulatory framework.
The Guidance concludes that insignificant effects on the metabolism that are an inevitable part of a product's physiological effect do not make a product a medicinal one. However, the question of whether a product is a cosmetic or a medicine is properly and legally the remit of the MHRA and the Guidance rightly points the reader to the expertise of the MHRA's Borderlines Section.
Classification of Claims and Evidential Support-
The Guidance confirms that claims should be supported by sound, relevant and clear evidence. In considering the nature of the supporting evidence to be required, a cosmetics marketer should have various questions in mind, such as:
- What is the nature of the claim or message that will reach the consumer;
- How they will provide proof on the supporting information that the copy fulfils reasonable consumer expectation of that claim; and
- What are the requirements for quality of tests within the supporting information?
In taking this approach to classification, support and testing the general context of the claim must be borne in mind; factors such as the use of a mixture of media or multiple claims in a single advertisement may modify the sense of the claim.
The CTPA acknowledges that the supporting information required will depend on the nature of the claim and proposes three such levels of supporting evidence based on the scientific, technical or consumer support available (and not the claim itself):
- Evidence for claims widely accepted to be established;
- Evidence for claims with established rationale but requiring additional, often product-specific evidence; and
- Evidence for claims based upon a significant advance in science or technology.
In addition to this classification, the Guidance proposes that claims be classified into six distinct groups: sensory claims, performance claims, ingredient claims, product aesthetics claims, combination claims and comparison claims. By considering both the evidential burden and the type of claim, the Guidance illustrates in table-format possible sources of supporting evidence for each combination as well as commenting on combination and comparison claims. For example, possible sources for a claim based on sensory effects, which is based upon a significant advance in science or technology might be supported by, amongst other things, published reports, product formulation details and data on studies on the final product. The CTPA believes that this approach offers a way forward for mutual understanding between the industry and the ASA.
Good Study Design
The guidance also provides practical advice in relation to the type, selection, conduct and reporting of studies in the final section of the Guidance. Although this section is not meant to be definitive; it provides a helpful checklist of what an advertiser should consider about the structure of the study undertaken. It emphasises the underlying principle that studies must be appropriately structured and accurately reported. Details are given on the types of studies that can be conducted and the specific requirements for those studies.
It is hoped that following this review and update of the guidance provided for UK advertisers, advertisers will be understand more clearly the evidential criteria necessary for claims. The fact that the Guidance recognises the consumer's need to be well informed of a products characteristics and to be protected from being misled provides further reassurance for those people to whom the claims are made.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 10/11/2008.
