Legal Review: FTC Frowns on L’Oreal Skin Care Claims1 Aug, 2014 By: Linda A. Goldstein, Lauren Aronson Response
Last month, many cosmetics companies marketing anti-aging products began to develop worry lines after the Federal Trade Commission (FTC) announced a proposed settlement with L’Oréal USA Inc. According to the FTC, L’Oreal made false and unsubstantiated claims about the anti-aging benefits of its Lancôme Génifique Youth Activating and L’Oréal Paris Youth Code products.
The Food and Drug Administration (FDA) also examined some of these claims in 2012, when it sent L’Oréal a warning letter for making what it considered to be drug claims for several Lancôme products, including Génifique. The letter can be found at: www.fda.gov/iceci/enforcementactions/warningletters/2012/ucm318809.htm.
In ads for its budget-friendly Youth Code products, L’Oréal promised that consumers could “Crack the code to younger acting skin” and enjoy “youth regenerating skincare” backed by “10 years of gene research.” According to L’Oréal, the Youth Code product line could increase the ability of aging skin to recover from “aggressions” such as stress, fatigue and aging.
In advertising, L’Oréal showed a bar graph representing the results of a clinical study showing the difference in gene responses of aging skin compared to youthful skin. Similarly, in advertising for Lancôme Génifique, which sold for as much as $132, L’Oréal promised consumers that “Youth is in your genes. Reactivate it. See visibly younger skin in just 7 days,” and that Génifique could “boost genes’ activity and stimulate the production of youth proteins.”
The problem, according to the FTC, was that L’Oréal did not actually possess the clinical testing to support the claims that the advertised products could boost gene activity or increase the ability of the skin to respond to aggressions. The FTC also took issue with ads for Génifique that featured a bar graph claiming that respondents who used Génifique in home-use testing experienced “perfectly luminous” (85 percent), “astonishingly even” skin (82 percent), and “cushiony soft” skin (91 percent).
The FTC alleged that there were a few wrinkles with these seemingly impressive test results. First, the study asked the respondents whether they agreed or disagreed that the product made their skin appear more radiant/luminous, whether their skin tone/complexion appeared more even, and whether skin felt softer — but not the magnitude of the observed improvement.
Nevertheless, L’Oréal’s advertising used powerful adjectives such as “astonishingly” and “perfectly” to describe the improvements that the product made to the respondents’ skin. Second, it appears that L’Oréal combined the responses of all consumers that “agreed” to some degree with the questions to arrive at the percentages touted in the advertising.
Under the order, L’Oréal is banned from representing that any Lancôme or L’Oréal Paris facial skincare product boosts the activity of or targets specific genes, resulting in younger looking/acting skin or causing the skin to respond five times faster to aggressors absent competent and reliable scientific evidence. In addition, L’Oréal may not represent that any product covered by the order affects genes without competent and reliable scientific evidence or misrepresent results of any study.
While we can’t promise that our tips will save you any wrinkles if you plan to market anti-aging cosmetics, we offer the following suggestions:
- Objective performance claims need support. If you are making establishment claims (i.e., “clinically proven,” “ studies show,” etc.), you need competent and reliable human clinical studies that demonstrate the precise benefits being claimed.
- Science is not in the eye of the beholder. Confirm that the scope of your claims — including the language used in graphs — matches the scope of your testing and accurately represents the results.
- Unless your product is an approved drug, confirm that your claims are limited to permissible structure/function claims. In addition, make sure you can actually support your structure/function claims with scientific evidence.
- Puffery is a weak defense. The FTC deemed adjectives that might normally be deemed to fall within the realm of puffery, such as “astonishingly or perfectly,” to be objective performance claims requiring equivalent levels of support by L’Oréal. ■