Another ‘Clinically Proven’ Claim Bites the Dust … 5 Times Faster5 Aug, 2014 By: Gregory J. Sater
By now, readers of my articles know that if you’re going to make what’s known in the legal world as an establishment claim – such as a “clinically proven” claim -- you’re going to face a higher burden of proof in front of the Federal Trade Commission (FTC). You’re also going to face a higher burden of proof in consumer class action cases. You’re going to be asked, “Where’s the beef?” And you’d better have it.
Apparently cosmetics giant L’Oréal USA Inc. doesn’t read my articles because they made such a claim and, at least according to the FTC, couldn’t back it up. As a result, L’Oréal was sued by and had to enter into a consent decree with the FTC. L’Oréal disseminated ads for products called Paris Youth Code and Genifique, making anti-aging claims.
The products were said to be “clinically proven” to “boost genes’ activity and to stimulate the production of youth proteins.” They would give people “visibly younger skin in just seven days.”
Some of the ads said, “Youth is in your genes. Reactivate it. See visibly younger skin in seven days.”
Others said, “During the night, the speed of cell regeneration doubles. By screening over 4,000 genes, our laboratories identified genes responsible for cellular regeneration. Today, Lancôme creates Genifique Repair, our first night care that boosts the activity of genes. Visibly repair and restore your skin while you sleep.”
Others talked about the products’ “Clinical Strength.”
Others said that the products “cracked the code to younger acting skin” and were heralding a “new era of skincare” known as “gene science.” One of the ads included a chart or diagram that said “Clinical Study” across the top and in large letters said “5X FASTER.” The latter appeared to claim that using the product would cause genes to react to “outside aggression” five times faster than in the absence of the product.
Some of the ads contained asterisks and footnotes (perhaps written by attorneys for L’Oréal?) giving somewhat more information to consumers about the testing done by L’Oréal, saying such things as: “In-vitro test on genes,” “Clinical study on skin proteins, associated with young skin,” or “Based on in-vitro testing.” Others just said more generically: “10 Years of Research.”
Citing 10 years of research, using scientific looking charts and diagrams, using numeric claims like “5X FASTER,” and citing a clinical study or saying “clinically proven” are all red flags that historically have drawn, and in this particular case ultimately did draw, the attention of the FTC.
The FTC looked at L’Oréal’s clinical study and concluded that it failed to meet the standard of competent and reliable scientific evidence because it was not done on the product or on its ingredients. In fact, the study didn’t even evaluate whether, as claimed in the advertising, aging human skin would act any differently with the product than without it.
Under the consent decree, L’Oréal is prohibited from claiming that any of the products sold under the brands in question target the activity of genes or boost the activity thereof, or make skin act younger or look younger, or respond five times faster to aggressors like stress, fatigue and aging. The company in the future also cannot misrepresent the results of any test or study.
Gregory J. Sater is a partner in Venable LLP‘s Advertising, Marketing and New Media Group. He can be reached at (310) 229-0377 or via E-mail at email@example.com.