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When ads for beauty products convey subjective claims – for example, L’Oréal’s long-standing “Because I’m worth it” tagline – it’s unlikely consumers would think statements like that are supported by science.  (It’s hard to imagine a testing protocol that could establish whether or not we’re worth it.)  But flip through a magazine and it’s apparent that test tubes are overtaking powder puffs in how some cosmetics are marketed.  When companies tout the scientific research behind their advertising or say their products have been “clinically proven,” those claims – like any other objective representation – need appropriate support.  According to an FTC lawsuit, L’Oréal USA overstated the science behind claims for products in its Lancôme Génifique and L’Oréal Paris Youth Code lines.  The proposed settlement underscores that established legal principles apply at the cosmetics counter, too.

Products in the Lancôme Génifique line sold for as much as $132 at upscale department stores.  The ads went far beyond subjective beauty claims, emphasizing instead the supposed science behind the products:  “Genes produce specific proteins.  With age, their presence diminishes.  Now, boost genes’ activity and stimulate the production of youth proteins.”  Promising “visibly younger skin in just 7 days,” L’Oréal went on to state that its claims were “clinically proven.”

Ads for L’Oréal Paris Youth Code struck a similar scientific chord, touting the “new era of skincare: gene science” and that consumers could “crack the code to younger acting skin.” 

L’Oréal Paris Youth Code ads also prominently featured a bar graph labeled “CLINICAL STUDY” that purported to show that the product targeted specific genes to make skin act younger and respond five times faster to aggressors.  But, as the complaint details, the study didn’t test a L’Oréal Paris Youth Code product or even one of the ingredients.  It basically just evaluated gene expression – the process by which genes produce proteins – in young and older groups of men and concluded that the expression of certain genes was delayed in aged skin.  Fair enough, but how does that support L’Oréal’s advertising promises?

The FTC’s complaint charges that L’Oréal made false and unsubstantiated claims for Lancôme Génifique and L’Oréal Youth Code products.  The proposed order prohibits the claims challenged in the complaint unless the company has competent and reliable scientific evidence.  That provision applies not just to the products named in the lawsuit, but to any Lancôme or L’Oréal Paris facial skincare product.  The order also prohibits unsubstantiated gene-related claims for an even broader category of Lancôme and L’Oréal Paris products.  In addition, the company can’t misrepresent the contents, results, or interpretation of any test or study about that broader category of products.  File your comments about the proposed settlement by July 30, 2014.

What can others in the industry take from the settlement?

• Face up to your legal obligations.  What kind of substantiation does a company need to support its claims?  At minimum, the level of proof it says it has.  The FTC Policy Statement Regarding Advertising Substantiation makes that clear:  “When the substantiation claim is express (e.g., tests prove, doctors recommend, and studies show), the Commission expects the firm to have at least the advertised level of substantiation.”  So if you say your claims are “clinically proven,” don’t be surprised when the FTC insists you live up to the standard you’ve set.
• Make sure what you say and the proof you have to support it are “fit to be tried.”  It’s a common occurrence in FTC cases:  A study gives advertisers a scientific inch, but they take a marketing mile.  The FTC’s case against L’Oréal alleges the company overstated the science behind the challenged products.  The best advice for advertisers:  Make sure your ad claims fit the data.
• Objective representations require proof that’s more than just skin deep.  Ads that focus on users’ dewy visage or angelic glow are probably just puffery.  But once companies make objective product representations, long-standing substantiation principles apply.  Last time we checked, there’s no “cosmetics exception” to the FTC Act.

The 25-words-or-less take-away:  While we're on the subject of who's worth it, when it comes to appropriate proof for objective claims, we think consumers are worth it.