Case n. 52/2017
- By : Christoph Kolonko
- 22 September 2017
No connection between cosmetics and medical treatments
Executive summary of the decision of the Advertising Self-Regulatory Body no. 52/2017
1. Marketing communications challenged before the IAP (Advertising Self-Regulatory Body)
Beiersdorf S.p.A. (“Beiersdorf”) against a number of market communications concerning the products of the line “Revitalift Laser X3” marketed by L’Oréal Italia S.p.A. (“Oreal”).
2. Legal arguments of Beiersdorf
(i) Misleading advertisement in general (Article 2) and, specifically, concerning cosmetics (Article 23):
- illicit connection between cosmetics and laser dermatological treatments, consumers induced to believe that cosmetics are as effective as medical treatments, also due to the name of the product recalling laser treatments (“Revitalift Laser X3”);
- “removes the wrinkles” induces consumers to believe that cosmetics have a definitive effect;
- no “scientific innovation” since the product has been marketed since 2012;
- “anti-age no.1 in Italy” is not demonstrated.
(ii) Inappropriate use of tests and statistical data (Article 3):
- many different tests mentioned in the market communications, consumers are confused;
- the results of the tests are not always clear and demonstrated.
(iii) Comparative advertising (Article 15) and denigrating advertising (Article 14):
- by an implicit comparison with its competitors’ products, Oreal claims the superiority of its products.
(iv) Testimonials (Article 4):
- picture, first name and age of the testimonials are not enough to identify the relevant person.
3. Legal arguments of Oreal
- scientific tests demonstrated the effectiveness of the products;
- no communication provides for a connection between cosmetics and laser treatments;
- formula of the products updated in 2016, it is still a “scientific innovation”;
- “anti-age no. 1 in Italy”, evidence concerning the number of sales in the relevant market sector;
- no direct reference to any competitors’ products, so no comparative advertising and no denigration;
- testimonials are identified, surnames cannot be published due to the privacy rules;
4. Opinion of the Control Committee
Infringement of Article 2 (misleading advertisement): products are no more innovative and consumers are induced to believe that the effects of the cosmetics are definitive.
5. Decision of the Giurì
Breach of Article 2 for the following reasons:
- “removes the wrinkles” is a violation of Article 2, since the market communication induces the consumers to believe they may benefit of definitive and full effects;
- claims using “no. 1” are usually accepted because they are hyperbolical and widespread, and consumers are used to understanding them; in this case, the claim is illicit because it refers to a specific area (“in Italy”) but such leadership on the market is not demonstrated.
As per the other complaints, no breaches for the following reasons:
- consumers are used to receiving communications emphasizing the effectiveness of the products;
- it is sufficient that testimonials may be identified before the IAP, not in the market communications, and Oreal provided the Giurì with the relevant written statements;
- no connection between the cosmetics and the laser treatment, since a specific disclaimer (“a dermatological treatment is the most efficient choice against the age”) is placed on the packaging;
- a “scientific innovation” shall not be assessed on a chronological basis only, therefore there is no violation;
- no denigration, the claims only draw the attention of the consumers on Oreal’s products;
- no comparative advertising since the competitors’ products are not mentioned;