With L’Oreal recently required to revise its advertising for its new ‘PerfectSlim’ anti-cellulite cream, we focus on the issues and what the CAP Code and a CAP Help Note have to say on this topic.
Who: L'Oreal 'PerfectSlim'
Where: The Advertising Standards Authority
When: June 2004
Cosmetics brand L'Oreal was required to discontinue a press and poster ad campaign promoting its "anti cellulite" product PerfectSlim. This was after the Advertising Standards Authority ("ASA") held various claims in the advertising, as well as the product name itself, to be contrary to the CAP Code of Advertising Sales Promotion and Direct Marketing.
PerfectSlim brand name problem
The ASA considered that the brand name PerfectSlim clearly implied a slimming or weight-loss effect. It therefore required all future advertising using the brand name to include a clear disclaimer saying that the product had not been proved to aid slimming.
The claims the ASA held to be contrary to the Code were "get firm on cellulite 24/7…anti-cellulite + firming cream…with lipo-reducers to transform fatty acids to energy…to stimulate the body's natural drainage..progressively..firm skin" and the suggestion that with regular use the cream would eliminate cellulite and make skin firmer.
Clause 50.1 of the CAP Code states:
"medical and scientific claims made about beauty and health-rated products should be backed by evidence, where appropriate consisting of trials conducted on people. Substantiation will be assessed by the ASA on the basis of available scientific knowledge."
Clause 51.1 states:
"any claims made for the effectiveness of or action of a slimming method or product should be backed where appropriate by rigorous practical trials on people".
CAP Help Note
In its consideration of the L'Oreal claims, the ASA no doubt had reference to CAP's "Help Note on substantiation for health, beauty and slimming claims". This was first published in July 1998 and although there have been recent calls from the cosmetics industry for it to be updated "to acknowledge the scientific progress made in recent years by cosmetic companies" there are currently no signs that a review is in prospect.
The Help Note requires that for new objective claims, sound data, relevant to the claim made, should be collated to form a body of evidence. There are now generally recognised ways, the Help Note goes on, of collating existing data (where it is not immediately available) by conducting a systematic review of all available scientific evidence and evaluating it for its relevance.
The body of evidence gathered might consist, the Help note continues, of:
· experimental human studies in which an intervention group or groups of human subjects use the product under examination and a control group uses a control, with neither subjects nor researchers taking the measurements knowing which subjects are in which group;
· observational human studies in which a group or groups of people are studied in their environment;
· an appropriate expert's extrapolation of relevant findings from seemingly irrelevant human studies;
· self assessment studies;
· published and unpublished literature; and
· anecdotal evidence such as testimonials and endorsements.
The Help Note goes on to say, however, that any body of evidence produced should normally include at least one adequately controlled experimental human study. It goes on that "before and after" studies with little or no control, studies without human subjects, self assessment studies, published and unpublished literature and anecdotal evidence are unlikely to be considered acceptable as sole support for 'new claims' relating to physiological action in humans.
The Help Note goes on to give recommendations as to how sound individual studies should be conducted and how data should be submitted in support of claims when these are challenged.
The L'Oreal defence
A L'Oreal spokesman said that it had confidence in its product, which had apparently proved effective in reducing cellulite in 85% of cases and was judged best anti-cellulite product in an independent consumer test.
Having said this, L'Oreal said it was co-operating with the regulator's actions and given the ASA verdict, it is clear that whatever substantiation L'Oreal did produce did not satisfy either the Help Note requirements or the Code. For instance, it may well have been that the testimonials supporting the 85% effective claim were not backed by trials.
A separate issue taken up by the regulator was that because the PerfectSlim product claimed to improve the structure of the skin, this could amount to a physiological claim and as such might be required by the Medicines and Healthcare Products Regulatory Authority ('MHRA') to require a drug licence before being made. For its part the MHRA indicated that because the advertising did not talk about obesity but described itself only as "anti cellulite" cream, there may not be a medicinal claim involved that was caught by the drug licensing regime.
Why this matters:
By all accounts, the PerfectSlim launch was highly successful, with some retailers claiming to have run out of supplies due to customer demand.
L'Oreal is currently working with the CAP on revised advertising copy, but there can be no doubt that this will not be the end of the battle between the regulators and those seeking to tap into the multi billion pound "cosmaceutical" market.