Decisions no. 22/2024 and no. 25/2024 of the Jury introduce important considerations regarding the claim advertising for cosmetic products, apparently redefining, in a restrictive sense, the criteria for the legality of advertising messages for operators in the cosmetics sector.
The decisions in question concern, in particular, anti-blemish cosmetics and see L'Oreal, as appellant in the first decision and then defendant in the second, always opposed to Beiersdorf.
In both decisions, the Jury stressed the importance of clearly specifying when a claim of effectiveness concerns a specific ingredient, especially if this is presented as “the most effective” or similar, and not the product. In the cases in question, in fact, the claim of efficacy relating to some ingredients translated into claims of superiority of the product, with implicitly comparative and denigrating profiles towards competitors and, therefore, inadmissible.
The Jury also considered expressions such as “the search is over" And "Sunspots? Game Over!”, as they could lead the consumer to believe that the product actually offers a definitive solution to the problem addressed. We can talk about harmless boasts, in fact, only when the claim used is clearly out of touch with reality and, therefore, unsuitable to be understood by the consumer as actually referring to the quality and results of the product.
With both rulings, the Jury also addressed the issue of “before” and “after” treatment images, reiterating the lawfulness of their use. However, it stressed that the photographs must not be altered through post-production or photo-retouching. The rulings also highlight the importance of not juxtaposing, in the same message, images of the face after make-up and images before treatment, as this communication technique is likely to generate suggestive effects on the consumer regarding the effectiveness of the product. Finally, the Jury considered the use of rendering techniques with the presentation of virtual images to be intrinsically misleading.
With specific regard to ruling no. 22/2024, the Jury also considered the following to be misleading: claim “recommended by dermatologists”; “over 10 million women have already chosen it" And "It is safe to use even during pregnancy.” As for the first claim, it was considered misleading due to its absolute nature, as there was insufficient evidence to support this claim. The second claim was found to be misleading because the sale of 10 million products does not necessarily imply that they were purchased by 10 million different people. Finally, the third claim It has been considered misleading because it presents as a particular advantage a characteristic that is in reality common to all anti-stain products.
The ruling no. 25/2024 also concerned further issues, such as, for example, the use of testimonials in the promotion of products. The Jury considered the communication method consisting of an interview with testimonial, regardless of whether they are professional actors, influencers or other individuals, who, in execution of an onerous contract, undergo photographic treatments and surveys and pronounce "spontaneous" phrases then used in the advertising campaign. However, he stressed that it is necessary to communicate to the consumer that such messages are commissioned by the company concerned and that they include mandatory-themed statements. Therefore, in the event that one decides to use this form of commercial communication, it is also necessary to specify that the witnesses have voluntarily undertaken to collaborate in a promotional initiative of the company concerned.
As regards the claims of efficacy, the Jury reiterated that:
- must be supported by adequate clinical trials;
- it is necessary to avoid profiles of excessive emphasis with which very rapid times of effectiveness of the product are claimed, as they are not plausible in general terms, and radical inhibitory effects of the problem treated;
- the legal notice must not contain ambiguities that could allow a corrective reinterpretation of the main message, making it, consequently, misleading;
- Although sufficient evidence of the novelty and effectiveness of the product was provided, this was not sufficient to justify claim containing the expression “never before”, as it is understood as a claim of absolute value.
Finally, the Jury underlined that, in this case, the use of a white coat by the person presenting the product – even though it bore the trademark of the cosmetics manufacturing company – evoked a healthcare context, creating an impression of medical nature that cannot be attributed to a cosmetic.
Content by Attorney Elisa Maria Babbini
