Whether intentionally or otherwise, some marketers have strayed into making claims that their cosmetic creams can have a more than insignificant physiological effect (that is, an effect deeper in the skin or body). Some have been Before and After diagrams (Avon Cosmetics Ltd, 17 January 2007); others have been marketing hyperbole that has exaggerated the product benefit. Either way, those types of claims are risky for two reasons: they could potentially be seen as medicinal, and they require a very high level of evidence to support them.
Advertising rule 12.7 states that marketers should not normally use unqualified claims such as “cure” or “rejuvenate”. The Committee of Advertising Practice (CAP) Copy Advice team recommends against other claims that are analogous with “rejuvenate” or, in context, could imply a significant physiological effect. Marketers can, for example, potentially use these terms when talking about the appearance of skin (for example, “rejuvenate your looks” is likely to be acceptable, as is “regenerate your skin’s appearance” and “renew the look of your skin”) – however, when referencing the biological make-up or something deeper in the actual skin/cells, words such as “regenerate/rejuvenate” are likely to be unacceptable. The CAP Copy Advice team generally advises marketers to use words such as “revitalise” and “refresh”, but other claims might be acceptable depending on context.
A Body Shop adjudication in 2007 gives many examples of claims that the Advertising Standards Authority (ASA) considered physiological, including “boosts skin’s natural structure”, “promotes skin regeneration”, “overnight replenishment and repair”, “stimulates natural cell renewal” and “regenerating complex improves skin’s elasticity and maintains collagen renewal” (The Body Shop International plc, 26 September 2007). But Body Shop aren’t the only ones; Clinique has made claims that it’s “peptide complex enables skin to steer hearty cells to the base of a wrinkle and trigger skin’s own natural collagen production” (Clinique Laboratories Ltd, 11 October 2006). Furthermore, it has also been claimed that the technology in one face cream “focuses on using polypeptides and enzymes to ‘awaken’ the body’s own reservoir of epidermal stem cells to rejuvenate skin and make you look younger (Basic Research LLC t/a Voss Laboratories, 9 July 2008).
Similarly, Beiersdorf claimed that DNAge Nivea Visage contained folic acid so that it increased cell renewal (Beiersdorf UK Ltd, 25 July 2007), and a company called Age Technology claimed “it’s now been proven effective for reducing wrinkles and smoothing facial skin by up to 60% in just one month … skin thickness increased by over 8% in four months … In vivo testing showed that applications reduced wrinkles around the eyes by as much as 20% after two months and by more than 60% after 4 months … and it repairs the matrix and epidermal junction to reduce wrinkle depth by 40%” (Age Technology, 5 March 2008). The ASA considered the claims implied the cream would have more than a simply cosmetic effect and would be understood as claiming a significant physiological action. Because the advertiser had not been able to prove the claims, the ASA told Age Technology not to make them again.
Marketers should avoid making claims that a cosmetic cream is a “remedy for scarring” or that it could help to “reduce the appearance of scars” (Express Newspapers, 20 April 2011), unless robust clinical evidence for the efficacy of the product is held. See Beauty and Cosmetics: Creams.
In 2012, an ad titled “Wrinkle Killer Snake Serum” was investigated for claiming that the product had “Temporary freeze-like effects on the face muscles”. The advertisers argued that the claims referred to temporary effects but the ASA concluded that, in context with the headline claim, this claim was likely to be interpreted as suggesting that the product had an effect similar to injected fillers after each use, rather than relating to an established temporary moisturising effect (MyCityDeal Ltd t/a Groupon, 25 January 2012).
Marketers should also be aware that a qualification clarifying what is meant by the physiological claim is not likely to permit its usage. In 2017, the ASA concluded that the claim “Re-energises skin’s appearance cell by cell*” in conjunction with the qualification “*by exfoliating skin surface cells” was not acceptable, because the qualification was unlikely to counteract the overall impression of the ad (Procter & Gamble (Health & Beauty Care) Ltd, 9 August 2017).
The CAP Copy Advice team understands that insignificant physiological effects do not necessarily render a cosmetic a medicine, but would nevertheless urge marketers wanting to make claims of this nature to check with the Borderline section of the MHRA first.
Marketers of beauty food supplements wishing to make physiological claims should be aware of CAPs guidance: Beauty and Cosmetics: Food, Supplements and Pills.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA.
CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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