Following a slew of negative findings against cosmetic ads, the Cosmetic, Toiletry and Perfumery Association has published a unique “Framework of common understanding” after “discussions with the ASA.” Mark Smith covers the highlights, wrinkles and all.
Topic: Health & Beauty
Who: CTPA and ASA
When: October 2008
Where: CTPA website
Law stated as at: 16 December 2008
Following a "Joint Initiative on Advertising Claims" by the Cosmetic, Toiletry and Perfumery Association ("CTPA"), which represents the cosmetics industry in the UK, and the Advertising Standards Authority ("ASA"), the CTPA has published a unique "Framework of Common Understanding" entitled "CTPA Guide to Advertising Claims" ("Guide").
The objective of the exercise is described in slightly mangled prose as "the creation of a common understanding, most likely assisted by clear written guidance, by which cosmetic product claims will be evaluated in a fair and consistent manner." Pity about the reference to clear writing.
The Guide is divided into three main sections, the first of which is mainly concerned with the definition of a cosmetic product and some related terms. The second section deals with the evidence that will be required to support claims made about cosmetics in advertising. The final section is a practical guide to good study design, which aims to assist those who wish to rely on studies to support their claims.
The document is not jointly published by the CTPA and the ASA. It is a CTPA document produced "following its discussions with the ASA." Rightly or wrongly one gets the impression that these references are the product of considerable dancing on pinheads between the two bodies about the wording to be used to describe the ASA's involvement and a determination on the part of the ASA not to be portrayed as necessarily agreeing with the Guide. Nevertheless the Guide is a useful, though naturally industry-biased, source of information on the topic of cosmetic advertising regulation and a "must read" for all those involved in this area.
What is a Cosmetic?
The Guide points out that what is or is not a cosmetic product is defined by the European Cosmetics Directive (76/768/EEC), which was implemented into UK law, with some additional wording, by Regulation 3(1) of the UK Cosmetic Products (Safety) Regulations 2004:
“cosmetic product” means any substance or preparation intended to be placed in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, correcting body odours, protecting them, or keeping them in good condition except where such cleaning, perfuming, protecting, changing, keeping or correcting is wholly for the purpose of treating or preventing disease.
However, it is highlighted that there will be certain instances where a product might meet the above definition, but would instead be considered a medicinal product under the Medicinal Products Directive (2001/83/EC). A product can be either cosmetic or medicinal, but not both at the same time, and the Medicinal Products Directive takes precedence over the Cosmetics Directive and its implementing legislation. A "medicinal product" is defined as follows:
Any substance or combination of substances presented for treating or preventing disease in human beings.
Any substance or combination of substances which may be administered to human beings with a view to making a medical diagnosis or to restoring, correcting or modifying physiological function in human being is likewise considered a medicinal product.
The Guide recognises that whether a product is a medicinal or cosmetic one can be a complex matter when apparent borderline situations arise. It provides some basic assistance, but recognises that such questions are in the remit of the Medicines and Healthcare Products Regulatory Agency (MHRA), and advises advertisers to consult the MHRA Borderlines Section for their expertise on these issues.
It also provides instruction on the terms "cumulative effects", "permanent effects", "physiological action", "pharmacological action", "immunological reaction", "metabolic action", "average consumer" and "breakthrough claim".
What Supporting Information is Required?
The Guide states that all claims should be supported by sound, relevant and clear evidence.
It describes four basic claim groups:
- Sensory claims – refer to perceptions or sensorial attributes of the product during use: olfactory, tactile or visual effects
- Performance claims – refer to the effect of using the product on the subject: changing their appearance, protecting them, keeping them in good condition, or correcting body odours; covers both the intensity, mode of action, or duration of the effect, however measured.;
- Ingredient claims – refer to the combination of ingredients or single ingredients that go to make up the product;
- Product aesthetics claims – refer to the appearance, fragrance, form (including pack) etc.
A table is then provided for each claim group, with the suggested evidence varying depending on whether the claim is:
(a) Widely accepted to be established;
(b) Based on established rationale but requires additional, often product-specific, evidence;
(c) Based upon a significant advance in science of technology.
For example a performance claim which is based upon a significant advance in science or technology could be evidenced by, amongst other things, published reports, scientific experiments conducted on the final product, relevant formulations or primary ingredients, and market research studies on the final product or relevant formulations.
Good Study Design
Finally, the paper provides a practical guide to good study design, which will hopefully aid in the design and conduct of studies intended to support specific claims and in their subsequent evaluation by an assessor.
The Guide offers advice on a variety of aspects of these studies including general principles applicable to all studies, specific requirements for different types of study, the conduct of studies and the reporting of them.
Why this matters:
The Guide was published following a number of ASA decisions concerning claims made in advertisements for cosmetics which were held to be unsubstantiated. Although at times the advice is somewhat convoluted, it is a welcome aid for an area of advertising which is often subject to close scrutiny. The full Guide is available here.