Claims on cosmetic products are an essential way for cosmetic manufacturers to explain to their customer what the product does and why they should buy it instead of something else. If a manufacturer makes false or misleading claims, they are likely to alienate their most precious asset, the loyal customer. However, one person’s inventive presentation of their product’s credentials may be another person’s misleading claim; therefore, certain rules must be established to draw the line.
For many years, rules governing claims in the EU were established by the member states’ self-regulatory organizations, such as the Advertising Standards Authority in the UK, whose codes of practice not only apply the laws surrounding advertising but also consider national character and issues such as taste and decency. There has been no change to this well-established way of ensuring that advertising is legal, decent, honest and truthful, and the system of self-regulation will continue in the EU member states. Under the Cosmetics Directive, manufacturers ensured that claims could be substantiated, and the evidence was available in the Product Information File.
However, in European Cosmetics Regulation No. 1223/2009, the European Commission (EC) has chosen to regulate cosmetic claims in addition to these existing regimes, saying that consumers should be protected from misleading claims concerning efficacy and other characteristics of cosmetic products. This is covered specifically in Article 20. The first paragraph states “In the labeling, . . . text, names, trademarks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.” The second paragraph sets out the process by which the EC will develop a list of the common criteria justifying the use of a claim. The third paragraph covers claims relating to animal testing, and is essentially unchanged from the text of the European Cosmetics Directive.
The process for establishing the common criteria for claims has been completed, and this list was published in the Official Journal of the European Union on July 10, 2013 (L 190/31), as Regulation (EU) No. 655/2013. As a European Regulation, the text is directly applicable in all of the member states of the EU. There are six criteria identified, and for a claim to be compliant, it must conform to all six: legal compliance, truthfulness, evidential support, honesty, fairness and informed decision-making. Furthermore, the definition of a claim is broad, and includes text, names, trademarks, pictures and figurative or other signs (such as logos) that convey, explicitly or implicitly, product functions or characteristics. This applies irrespective of the medium or marketing tool used, the product functions claimed and the target audience. Compliance is the responsibility of the same person defined elsewhere in the Cosmetics Regulation as the Responsible Person. Although a manufacturer should consult the official text for the exact wording of the common criteria, a summary of the main provisions follows.
A cosmetic manufacturer may neither claim that a product has been approved or authorized by a competent authority, nor claim that the product complies with the minimum legal requirements. There is no authorization process for cosmetic products in the EU, and all products must comply with the legal requirements. When determining the acceptability of a claim, review the perception of the average end-user of a cosmetic product—one who is well-informed, observant and circumspect. Social, cultural and linguistic factors in the target market are also to be taken into account. This means that a claim understood by a specific target audience is not necessarily misleading just because others do not understand the same claim.
If a manufacturer claims that an ingredient is present in their product, it must be there; however, they must not claim (whether explicitly or by implication) that the finished product has the properties of that ingredient unless it is true. For example, many ingredients may have moisturizing properties, and advertising their presence may be taken as an implied moisturizing claim for the product. But if this is the case, there must be adequate and appropriate support for the claim. Expressions of opinion are not verified claims and must not imply they are verified claims.
Claims must be supported by adequate and verifiable evidence, which may include appropriate expert assessments, and must take account of state-of-the-art practices. Studies used as evidence must be ethical and relevant to the product in question. They must follow well-designed and well-conducted methodologies. The level of evidence can be consistent with the type of claim being made, and this is particularly relevant where a lack of efficacy may cause a safety problem (e.g. sun protection). However, statements of clear exaggeration or hyperbole not intended to be taken literally will not require substantiation. Similar to truthfulness, claims that imply the product has the properties of one or more ingredients will need substantiation. It is not necessary to conduct a major “proof of effect” study if the manufacturer can compile a body of evidence to substantiate their claim.
The claim must not go beyond the available supporting evidence and must not claim unique characteristics if similar products possess the same characteristics. If the benefit or other action of the product is linked to specific conditions, such as use in association with other products, this must be clearly stated.
Claims must not degrade competitor products. Although comparative claims are not prohibited, the manufacturer must not cause confusion with competitor products. Claims must also be objective and fair, and not degrade ingredients legally used by others. This is particularly relevant when products state they are “free from” specific ingredients. Although “free from” claims themselves are not prohibited, there will be guidance or possibly further regulation from the EC to clarify when such claims might be deemed unfair.
Claims must be clear and understandable by the average consumer to help them make an informed choice. Marketing communications must take into account the ability of the target audience to comprehend the communication. For example, an advertiser may communicate differently to the professional user of a product than to the average consumer using similar products.
Although the publication of these common criteria was met with some concern by some, in reality, these criteria do not differ from the obligations already placed on advertisers under existing self-regulatory systems. Most importantly, the guidelines ensure consistency to avoid conflicting obligations and divergent requirements since such a situation would be to no one’s advantage—neither the advertiser, nor the consumer. However, this is unlikely the end of the discussion because certain claims may come under closer scrutiny, and further guidance or regulation may ensue—probably during 2014. Such claims will include “free from” and those relating to “natural” and “organic” products and their ingredients. However, there is no appetite for a claim-by-claim approach such as that applied to certain types of foods in the EU.
The Cosmetic, Toiletry and Perfumery Association (CTPA) has developed a Guide to Advertising Claims that can be downloaded from www.ctpa.org.uk to help guide manufacturers in assessing the necessary substantiation for their claims.