Whilst the demand for topical beauty products has always been high, so-called invasive beauty products such as injectables are now increasing in popularity. For luxury brands in the UK, this means the bar for substantiating claims continues to rise. Now more than ever, strong advertising regulation is enforced in this area to ensure consumer safety.

The Advertising Standards Authority (ASA) takes a robust approach when it comes to enforcing the rules which govern advertising beauty and wellness products, especially with regards to substantiation of claims. The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP) code requires marketers to be able to substantiate any claims made under rule 3.7 and specifically in relation to medicines, medical devices, health-related and beauty products, to provide even stronger documentary evidence under rule 12.1. This is something that advertisers often struggle with. 

This article looks at some recent ASA decisions on inadequate substantiation for claims about beauty and wellness products and how to ensure compliance.

Topical beauty products

The ASA has previously upheld a number of complaints about topical beauty product advertisements.

The ASA ruling on Easylife Group Ltd t/a Easylife Group, Positive Health concerned an advertisement for a product containing hyaluronic acid that said: “say goodbye to wrinkles in 7 days”. The ASA held that consumers would interpret the claim to mean that the appearance of wrinkles would be reduced in seven days with permanent effect. This was in contrast to the substantiation provided which showed the results of hyaluronic acid use over a much longer period of time. It was held that the ad breached the CAP code because these claims were both unsubstantiated and misleading. This ruling highlights the need for advertisers to have substantiation for specific claims, especially in cases where the claim made is by reference to a limited period of time.

The ASA ruling on D&A Cosmetics Ltd also concerned a topical beauty product, a ‘lip plumper’ which the advertiser claimed created “long term plumping results by naturally improving collagen production”. The evidence provided by the advertiser showed positive results after the active ingredient in the lip plumper was applied by a group of 29 women over a 30-day period. However, the ASA stated that a higher level body of evidence would be needed to substantiate the claim and the evidence provided did not indicate if the effects continued after use of the active ingredient ceased. The evidence had also not been peer reviewed. As a result, the data was insufficient to substantiate the claims, which were likely to mislead. This decision again demonstrates the ASA’s high threshold for evidencing claims of this nature and shows that advertisers must ensure they have the most comprehensive evidence possible before making a claim. Even where claims are supported by documentary evidence, a claim cannot be ambiguous about how long the effects of a product last.

Invasive beauty and wellness treatments

With the rise in invasive beauty and wellness treatments, the need to ensure consumer safety is arguably even more important. The ASA recently undertook a review of claims about the increasingly popular intravenous nutritional therapy drips (IVNT) and upheld a number of decisions where advertisements fell afoul of the CAP code.

The ASA ruling on REVIV UK Ltd t/a REVIV concerned a claim that the advertisers ‘Vita glow’ IVNT drip would help to “improve the appearance of hair, skin and nails” and help slow the ageing process. The ASA concluded that there was nothing in the advert which indicated how long the alleged benefits would last for and they had not seen sufficient evidence that ingredients in the drip either alone or in combination had any anti-ageing properties. As such, the claim was unsubstantiated and misleading.

Similarly, the ruling on Get A Drip Ltd concerned a claim that the advertisers “Beauty Drip” helped to “prevent premature ageing and improve the health of your hair, skin and nails”. Evidence provided by the advertiser related to the substances in the drip but the ASA concluded that the documents did not provide adequate evidence for the anti-ageing and appearance claims. There was nothing in the advert which indicated how long these benefits would last for, nor was there sufficient evidence provided to support the claim.

These recent ASA rulings make it clear that any claims about beauty and wellness products, need to be adequately substantiated. If a claim is unsubstantiated, it is likely that it will also be found to be misleading. To avoid an ASA investigation, it is important that advertisers have a high-level of substantiation for such claims under CAP code rule 3.7 and if applicable, CAP code rule 12.1.

It is important to note that the ASA will consider how a consumer is likely to interpret a claim but the marketer’s intention will not be considered. In addition, the increasing popularity of invasive beauty and wellness treatments may mean that the ASA will make a stricter application of the CAP code as a way to ensure consumer safety – a critical consideration for marketers as they develop brand advertisements.

Freeths’ associate Eleanor Bradberry has experience of a wide range of IP matters including trademarks, passing off, copyright and designs. She also advises on comparative advertising and marketing, and Advertising Standards Authority investigations. She can be reached at [email protected]