The beauty market is a crowded industry. Claims that a particular product is the best or offers health benefits can help brands stand out.
However, such claims have to be verifiable and substantiated in order to comply with the Committee of Advertising Practice (CAP) code and avoid being deemed misleading by the Advertising Standards Authority (ASA).
Two recent examples where such claims fell foul of the CAP code relate to (i) claims about the health benefits of tanning beds; and (ii) whether you can claim you are the number one recommended skincare brand. These cases demonstrate the risks of making unsubstantiated health claims and failing to properly signpost evidence for comparative claims.
Case 1: Sun Retail Ltd t/a Indigo Sun
The ASA upheld a complaint by an NHS doctor that Indigo Sun's claims made in its ad were misleading and irresponsible, and referenced a study out of context.
The ad
Indigo Sun featured a video on its website titled "The Health Benefits of Tanning" which claimed that "moderate responsible use of sunbeds brings major health benefits", including vitamin D production and lower mortality rates compared to those who had never used sunbeds. The ad cited a University of Edinburgh study to back up its mortality rates claims.
The ruling
The ASA ruled the ad was misleading because it created the impression that exposure to ultraviolet (UV) light through sunbed use was conclusively proven to improve overall health and was not associated with melanoma mortality.
Indigo Sun's reliance on the University study had several flaws. The study's purpose was to provide a broad analysis of the link between UV exposure, including natural sunlight, and mortality among older adults, which differed significantly from the ad's focus on sunbed use specifically. Furthermore, the study was fundamentally based on questionnaire data, which had several limitations, including how participants were divided up, participants potentially misreporting their sunbed use and the possibility of behaviour changes during the study period. Further, the study did not specify how much UV exposure was required to achieve the stated health benefits.
The ASA also found the ad irresponsible because it omitted information on official advice from public health bodies (e.g. the NHS and the British Association of Dermatologists) about the risks of sunbeds and instead created an overall impression that health benefits significantly outweighed the risks.
Case 2: L'Oréal (UK) Ltd t/a La Roche-Posay
The ASA upheld one of three grounds of complaint made by L'Oréal's competitor, Beiersdorf UK Ltd (who owns Nivea), that La Roche-Posay's ad was misleading, unsubstantiated and unverifiable.
The ad
The listing on the La Roche-Posay website for its MELA B3 cleanser featured the following claims that attracted scrutiny: "MELASYL FIGHT HYPERPIGMENTATION. A NEW MODE OF ACTION LIKE NEVER BEFORE" and "N1 DERMATOLOGIST RECOMMENDED BRAND IN THE UK*".
The ruling
The ASA held consumers would understand the "new mode of action" claim to mean that the cleanser worked differently, rather than superiorly, to other hyperpigmentation products. L'Oréal verified the claim by providing six studies, including three randomised, blind clinical trials, demonstrating that the active ingredient operated in a different way to traditional ingredients. Although certain limitations in the evidence existed (which have been kept confidential due to commercial sensitivities), the ASA was satisfied that the evidence verified the claim made as it represented a genuinely new mode of action. It therefore did not find this claim to be in breach of the CAP Code.
The "N1 dermatologist recommended" claim was based predominantly on surveys of 73 consultant dermatologists (January - April 2023) and 78 consultant dermatologists (January - April 2024), representing approximately 10% of all UK consultant dermatologists. Despite concerns about sample size and a 49% overlap between respondent groups, the ASA concluded that the claim was substantiated as the methodology was robust and the results "statistically significant", with La Roche-Posay holding a considerable lead over the nearest competitors "at a 95% confidence level". In addition, the claim was supported by the survey questions and responses because: (i) the question "Which is the dermo-cosmetic brand that you recommend or prescribe the most?" was asked before the survey referred to any specific brands or products, in a spontaneous and unprompted manner; and (ii) in response to this question, La Roche-Posay was the most frequently named brand in both surveys.
However, the ASA upheld the complaint regarding verifiability in respect of the "N1 dermatologist recommended" claim finding that the ad failed to adequately signpost consumers to where they could verify the claim. Despite the claim being in an image at the top of the page, the reference to the supporting survey appeared only at the bottom of the product description and in the page footer. Further, the reference to the survey itself was not sufficient - "**Study of 73 Consultant Dermatologists Jan - April 2023" did not signpost where the information could be found. In addition, a separate signpost directed users to information with "for more info visit [link]"; however, (i) this was included in the footer of the page, which was only visible if website users scrolled past several product reviews, and it was not clearly connected to the initial claim in the image or product description; and (ii) the information provided related only to the 2024 survey, but the claim related to both surveys undertaken in 2023 and 2024. The ASA ruled this breached the CAP Code which requires advertisers to explicitly state how consumers can verify comparative claims.
Practical implications
These rulings highlight the importance of not only substantiating advertising claims with robust evidence but also ensuring that verification information is clearly and prominently signposted and readily accessible to consumers.
Businesses making health-related claims must ensure they possess robust scientific evidence that directly supports their specific assertions, rather than relying on broader studies that may be taken out of context, particularly where established medical consensus contradicts marketing claims.
The ASA's guidance on verifying comparisons makes clear that consumers should be directed to objective evidence to support claims and therefore sufficient information (or signposting to this) is required. For example, a signpost may be compliant if it links consumers to the information that verified the claim and adopts wording such as "comparison can be verified on www…" or "visit www… to verify the comparison". Merely including a reference to a website is unlikely to be compliant.