Health And Beauty ASA Round-Up - Advertising, Marketing & Branding

In May 2008, the Advertising Standards Authority (ASA) published the findings of its Cosmetics Advertising Survey, revealing a 93% compliance rate for those advertisements examined. The survey identified several points of concern from those ads held to be in breach of the Codes. For example:

A lack of evidence to support claims. In particular, anti-ageing, cumulative effect and skin improvement claims.
Medicinal claims for products that had not been granted a marketing authorisation by the Medicines and Healthcare products Regulatory Agency (MHRA).

Although the ASA emphasised in the report that it was optimistic that monitoring and collaboration with industry and clearance bodies would ensure a clear understanding of the necessary strength of evidence, these two issues continue to cause concern for advertisers. It appears that there is often a difference of opinion in relation to that which advertisers consider to be sufficient supporting evidence and the view of the ASA's expert.

This Law-Now presents a selection of more recent adjudications, highlighting the typical issues and common challenges which advertisers in the industry have faced over the last 12 months.

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A lack of evidence to support claims. In particular, anti-ageing, cumulative effect and skin improvement claims.
Medicinal claims for products that had not been granted a marketing authorisation by the Medicines and Healthcare products Regulatory Agency (MHRA).

This Law-Now presents a selection of more recent adjudications, highlighting the typical issues and common challenges which advertisers in the industry have faced over the last 12 months.

1. Substantiation of claims

Northern & Shell Plc t/a OK! Magazine, 27 August 2008

Two ads were run in the national press, for the cosmetic products 'Eyesential' and 'The Lift'.

The first ad, for Eyesential, stated: "Look years younger in an instant...Eyesential an innovative miracle product that temporarily reduces the appearance of puffiness, fine lines, dark circles and wrinkles in minutes, yet lasts for up to 10 hours. From the first use the miracle potion will give dramatic lifting effects, transforming tired and puffy eyes and reducing the appearance of wrinkles and fine lines..."

The ad included three sets of 'Before' and 'After' photographs, showing women with wrinkles and lines around their eyes before, and smoother skin, after. The second ad made similar claims. It also showed a photograph labelled 'Before the Lift' showing a woman's face with shadows on the cheeks and bags under the eyes, and one labelled 'After The Lift', showing her face without these shadows or bags.

Four complaints challenging whether the claims could be substantiated were made and upheld.

The ASA considered the claims made implied the products could deliver substantial visible changes, and went beyond the sort of claims established for those types of product. They therefore required substantiation with high quality evidence. The ASA concluded it had not seen robust scientific evidence to substantiate these claims. For example, the ASA said a consumer perception study on The Lift was not considered an adequate substitute for properly controlled studies and noted that none of the opinions referred to looking "years younger in an instant", and that a DVD demonstrating the product was promotional in nature.

When considering whether the 'Before' and 'After' photographs in both ads were representative of the results the products could produce, the ASA concluded that OK! had not been able to demonstrate this. The ASA considered the 'Before' and 'After' photographs clearly showed different shadows, and therefore different lighting, despite the photographer claiming the images had not been altered.

The adjudication reflects the ASA's call for high-level evidence in support of efficacy claims in cosmetics advertising, particularly where they suggest more than a temporary or sensory effect. Anti-ageing claims are always likely to be a particular focus for the ASA.

Sisley UK Ltd, 24 September 2008

A magazine ad claimed that a cellulite cream, 'Celluli-Pro Slimming and Firming Concentrate': "reduces fatty deposits... reduces the appearance of cellulite...diminishes the orange peel aspect..." was "slimming and firming," had "draining properties," contained "slimming active ingredients," and worked by "stimulating energy consumption in the same way as exercise."

As a result of various complaints, the advertiser was challenged to substantiate all claims. In a detailed assessment, the ASA upheld all of the complaints.

Sisley submitted its substantiation for the claims made, including a confidential study on two of the cosmetic ingredients and an in-use clinical study. After taking expert advice from the ASA's independent expert, the ASA considered that the in vitro studies did not establish the necessary level of proof for the claims made. It also concluded that the methodology of Sisley's clinical study on product users was not robust enough to support the claim "reduces fatty deposits". For example, the controls were untreated thighs, which failed to take account of a placebo effect, the effect of the massage used to apply the product, or the moisturising qualities of standard moisturisers.

The ASA found that the product could not reduce fat levels or weight more than might be achieved by regular massage. The ASA also found no evidence the cream had a more firming effect on the skin than a standard moisturiser, or to support the claim of reducing "the appearance of cellulite". Further, the ASA considered that the claim about stimulating energy implied a "permanent physiological change in the body" was a medical claim, for which Sisley did not have a marketing authorisation.

This shows how despite the use of costly clinical studies, cosmetics advertisers should be prepared for the rigour with which the ASA will examine borderline claims made for cosmetics.

Similarly, in a TV ad for an Avon Cosmetics skin exfoliant, despite the advertising having submitted studies that were conducted by an independent laboratory in the USA, the ASA took expert advice and concluded that the studies were not sufficient. For example, they found that testing on the skin of the arm was not a good model for facial skin and that the second trial in an uncontrolled user home-test without a control group was inadequate.

Ciba Vision (UK) Ltd, 17 December 2008

Ciba Vision ran a poster and a TV advert for a new disposable contact lens from its 'Dailies' range. Both stated: "THE MOST COMFORTABLE DAILIES® CONTACT LENS EVER, GUARANTEED." The TV ad also noted that "DAILIES is a registered trademark." The adverts used the registered trade mark symbol and referred several times to the "DAILIES® AquaComfort Plus®" brand name.

A competitor objected that the adverts misleadingly implied the lenses were more comfortable than any other brand of daily disposable contact lens ever. The complainant went to the expense of commissioning their own market research into the poster and provided this as evidence that a significant proportion of consumers and eye care professionals would interpret the claims in this way.

The ASA found that the competitor's research was flawed as the claim was put to participants in isolation rather than in the context of the ad, which could have unduly influenced their responses. The ASA believed that consumers were likely to understand the claim to mean that the AquaComfort Plus product was the most comfortable of the Dailies range.

This complaint demonstrates how competitive the industry is and that in relation to comparative adverts, additional care should be taken to ensure that all claims are clear and substantiated as competitors as well of the ASA will be prepared to make challenges.

2. Advertising of medicines, Offensiveness, Sex & Violence

AMI Clinic Ltd, 18 February 2009

A poster ad entitled, "WANT LONGER LASTING SEX?" in large, brightly coloured letters, with "SEX" appearing in even larger letters was one of this year's most complained about ads, attracting 521 complaints. Smaller text advertised: "NASAL DELIVERY TECHNOLOGY CALL THE DOCTORS AT ADVANCED MEDICAL INSTITUTE."

The complaints from the public were that the poster was offensive and unsuitable for public display, particularly near schools. The ASA also challenged whether the poster advertised an unlicensed medicine.

Unusually, the ASA asked the advertiser to withdraw these posters in January prior to the adjudication on the basis that they advertised an unlicensed medicine. In the event, both complaints were upheld. The ASA noted that although no swear words were used, many people felt the language was offensive, the bright, large text was crass, and the unavoidable size and prominence of the main question and the word "SEX" caused many parents embarrassment when their children asked them about it. The ASA considered that the style, tone and location of the ad was too "stark and prominent" and found it had caused serious, widespread offence. The commented that a number of complainants pointed out that the sheer size and prominence of the message made it impossible to avoid.

On the second issue, the ASA found that AMI's medicine was prescription-only and it did not hold a marketing authorisation for any medicines it prescribed as part of its treatment programmes. AMI argued that the poster did not advertise a medicine, but the way the medicine would be administered (through nasal delivery technology), and that their treatment programmes included counselling as well as medicine. However, the ASA considered that the ad overall indirectly advertised the unlicensed medicine.

This decision is a reminder that any prescription-only medicines must have a marketing authorisation before advertising them. It also demonstrates that an advert need not include swear words or graphic images to be deemed offensive, and that the ASA will consider the overall impression given, including the style, size of text and location in which the ad is placed.

Reckitt Benckiser (UK) Ltd, 25 February 2009

A slightly more unusual issue arose in a TV ad for Clearasil. A young girl walked passed two boys and said "hi" to one of them. As he replied, he hid his face behind his hair. He then explained to his friend that he was hiding a spot. His friend replied: "It's three days 'til the party! I know what you want." The boy was shown washing with Clearasil. In the next scene, subtitled "3 days later", the boy had no spots. He and his friend were shown near a group of girls, including the girl from three days before. The boy got onto a skateboard and said "here goes" to his friend before launching himself at the group of girls and crashing into the girl he liked. She looked shocked as he fell on top of her, knocking her to the ground. He then kissed her.

Four viewers complained that the advert was offensive and inappropriate and condoned sexual violence. In what seemed a sensible decision, the ASA did not uphold the complaints. It found that the collision appeared to be premeditated, but also thought the prior exchange indicted there was mutual attraction between the boy and girl. Although surprised, the girl did not seem frightened or repulsed, and she appeared to return the boy's kiss. The overall impression was not of violence or aggression. Although unconventional in its approach, the ASA found the ad was unlikely to cause serious or widespread offence.

In a similar adjudication, a Novartis Consumer Health UK Ltd adfor Savlon Advanced Healing Gel depicted a boy riding his bike down a hill and then falling off (off-camera). An adult was then shown applying Savlon to a cut on his knee. A voice-over said that the gel "creates optimal conditions to help speed up the healing of cuts and grazes from the moment it touches the skin; which could be a problem if your child likes showing off their wounds to impress their friends." The boy was then shown buying some fake plastic wounds in a joke shop and showing these off on his cheek, stomach and calves to other children.

Eight people complained that the advert "glamorised wounds and could be seen to condone knife crime amongst the young" and two people complained it could encourage self-harming amongst children.

As with the Clearasil decision above, the ASA applied a common sense approach to the concerns about the depiction of violence. It did not uphold either complaint, considering that viewers were most likely to see the boy as using the fake wounds to have fun with his friends. The humorous tone and the commonplace event of a boy getting a small wound while playing would be, it said, "unlikely to be seen to glamorise wounds or knife crime or encourage children to self-harm".

The ASA has demonstrated a measured approach to complaints about violence. However, the above adjudications serve as reminders to advertisers of uncontroversial health and beauty products that the adverts can still be subject to serious complaints, particularly if they take a novel or unexpected approach.

It seems likely that the cosmetics industry will continue to come under close scrutiny by the ASA. The conflict in opinion as to the type of claims which are acceptable continues, much as it has always done, despite the industry's attempts to improve mutual understanding, for example through the CTPA Guide to Advertising Claims which was a joint endeavour involving the CTPA, the ASA and Clearcast (link). (For our Law-Now on this document click Click here ). The adjudications highlight what appears to be a fundamental disagreement between the cosmetics industry and the ASA as to whether certain efficacy claims have now been substantiated by studies.

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 14/04/2009.

UK: Health And Beauty ASA Round-Up