An Introduction to Misleading Claims in the Beauty Industry

What is a Cosmetic Claim?

Let's start at the beginning. A cosmetic claim is any text, image or symbol that is used to imply characteristics or functions that a product has. 

Further details about cosmetic product claims are mentioned in Article 20 of Regulation 1223/2009, which states: 

In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have. 

Cosmetic claims apply to more than just what is written on the pack of a cosmetic; it includes any claims that are also made on advertisements or social media, regardless of the form.

What types of cosmetic claims exist?

Cosmetic product claims can be broad in nature, but typically relate to one of the following: 

• Ingredient claims: A combination of ingredients that are present in a cosmetic. They can also relate to 'free-from' claims in the absence of specific ingredients.
• Sensory claims: A statement that relates to a preference or a specific sensory attribute, such as olfactory, visual or texture.
• Performance claims: A description of how a cosmetic product performs, such as method of action, duration of effect, or intensity of change.
• Comparison claims: Where a cosmetic product is compared to another specific, or group of products. These types of claims are often subjective.
• Combination claims: One or more of the above claims used at the same time.

What are the regulatory requirements and available guidance for cosmetic claims in the EU, UK and US?

Now that we've covered several types of cosmetic product claims, let's dive into the regulatory requirements around the world. 

For claims to be made in the UK and the EU, there are 6 Common Criteria specified by Regulation 655/2013 for justification to be made. They are as follows:

1. Legal Compliance
2. Truthfulness
3. Evidential Support
4. Honesty
5. Fairness
6. Informed Decision-Making

The designated Responsible Person (RP) in the UK and EU is to ensure full compliance of cosmetic claims. Scroll to the bottom of this article for some useful claims guidance that brand can refer to. 

For claims made in the U.S., the law does not require labeling to be FDA approved prior to go-to-market. Furthermore, there is no list of approved or accepted claims for cosmetics. However, similar to advice for the EU, claims must be truthful, not misleading and any product that affects the appearance of the skin must comply with FDA drug laws.

Misleading Cosmetic Product Claims to be Aware of

Many claims are created to target growing consumer trends in order to make their products more attractive. However, doing so must be done with careful consideration, such as with the following popular claims.

Broad, Unqualified Environmental Product Claims
Making claims about cosmetics in regards to 'better for the environment' should be used carefully. Claims such as 'green' and 'environmentally friendly' are broad and ambiguous, meaning these are likely to mislead the consumer. Such broad claims are difficult to substantiate, if not impossible. Qualifications with a specific benefit and consideration of the entire product lifecycle is needed to determine and substantiate an overall environmental benefit. We will soon dedicate a whole blog post article to environmental claims, so stay tuned!

Carbon Neutral Claims
Carbon neutral means that the net volume of carbon dioxide released into the atmosphere throughout the supply chain of the product is offset. To do this, brands often invest in carbon offsetting schemes, which must be made clear, rather than insinuating that the product produces zero carbon dioxide emissions.

Clean Beauty Claims
'Clean beauty' is another common phrase that is used to make cosmetic products seem more desirable, albeit without any clear definition. 

Using the claim is often attributed to suggest free-from 'nasty' or 'toxic' ingredients. Some even go as far as to claim products are 'chemical-free'. Because of the lack of clarity, brands are creating claims that are leading to misinformation and scaremongering.

Remember, all cosmetics are legally required to be safe for consumers, so adding a 'clean beauty' claim should not suggest otherwise.

Microbiome Claims
The skin microbiome refers to the collection of micro-organisms that are naturally occurring on the skin's surface, and may play a role in its health and condition. 

There are currently no standardized guidelines or definitions on terminology such as 'Microbiome friendly'. Marketers should make clear what is meant by this popular claim and avoid overstating the benefits of a product for the microbiome and the skin, based on current scientific knowledge.

Having robust and clinically proven evidence that demonstrates the mechanisms and positive impact of a product on the skin - scientifically, not medically - should be present if you are making a microbiome claim.

Sunscreen Protection Claims
Sunscreen products must protect against both UVA and UVB radiation in order to be classed as a sunscreen. Making claims in relation to protection must be done with careful consideration of the intended market's product classification (cosmetic/OTC drug etc.) and claim guidance. 

Durable sunscreens (sometimes referred to as 'extended wear' or 'once a day' products) have been formulated to stay on the skin longer while maintaining their sun protection. Durability claims can be used in certain regions such as the UK and EU, but only when specifying clear information on application, re-application and other sun safe messaging. Instances such as when the user sweats, showers or swims will likely need re-application to ensure protection, and claims must make this clear. 

Hand Sanitizer Claims
With the global pandemic the rise in sales of hand sanitizers has sharply increased, with many brands looking to create the superior product. Using a claim that states 'hand sanitizer' is a biocidal product claim, and not one to be used on a cosmetic product. The appropriate wording is 'hand cleanser', 'hand gel' or similar.

Enhanced Imagery
Although it is common for pre or post production techniques to be used to alter the appearance of images, purposefully misleading consumers is likely to land you in trouble.

This is particularly prevalent in before and after photos, where it must be clearly proven that the use of a cosmetic product is the sole reason for any appearance changes. But using images on social media must be used carefully too - making sure not to use filters or editing that will mislead consumers about a product's performance.

Temporary vs Permanent Effect
Many cosmetic claims are written to claim that consumers can look 'younger' or 'better' after using these products. Cosmetics are used only on the skin's surface, meaning many of the effects claimed are temporary at best. Compare this to treatments such as botox and fillers which penetrate the skin and have a more permanent effect; these treatments are not the same and should not be compared or likened to .

Time-defying Cosmetics
Some cosmetics work in a way that can result in 'younger-looking' skin; consider plumper skin or coverage of pores for example. Making claims that these cosmetics defy the nature of time is, however, forbidden.

Make sure to avoid any reference to 'age reversing', 'turn back the clock', 'turn back skin aging' etc. to ensure your claims won't get you in hot water.

Consequences of Making False or Misleading Product Claims

Including false or misleading product claims can have far-reaching consequences for companies promoting the claims. 

Loss of Consumer Trust
Making claims that are misleading or false can lead consumers to avoid using products in the future. This can lead to increased demand for competitor products, and can cause knock-on reputational damage.

Reputational Damage
Opposed to negativity of individual products, consumers can lose confidence in a brand which can have a financial impact upon a brand. It is much harder to rebuild reputational damage with consumers. 

Consumer Harm
Consumer safety should always be the number one priority for a cosmetic company. Making false or misleading claims could lead to consumer harm. Not only does this impact your position to consumers and retailers, it can lead to financial penalties also.

Penalties and Lawsuits
Making claims for any of your products will generate attention from both competitors and regulators. Not being able to substantiate or uphold claims can lead to financial penalties or costly lawsuits.

Withdrawals and Recalls
Not only are penalties and lawsuits financially costly, but being forced to issue withdrawals and recalls can add further costs that need to be actioned. Compounded with retailer and consumer trust, this can be truly costly for a cosmetic company.

How can beauty brands avoid making false or misleading claims?

So far we've talked about what misleading claims are and what the consequences could be for adding false or misleading claims on your beauty products. So how do you avoid accidentally putting such a claim on your product?

When creating claims for your products, it is imperative to refer back to the 6 common criteria listed previously. However, the following points will help you stay on the right track.

1. Tell the truth: It is important to keep claims truthful, making sure not to exaggerate any capability or performance claims. This can include digitally improving images or using before and after photos that are not relevant to the product.
2. Produce the evidence: If you are making claims that rely on data, make sure that all data is readily available, along with any test methods or protocols, should you need it at a later date.
3. Be Careful of Drug-type Claims: There is a fine line between cosmetics and drug-type products. Cosmetics typically don't interfere with bodily functions and are used to improve appearance. However, products such as antiperspirants do interfere with bodily functions - they reduce sweating - yet are classed as cosmetics in the EU and an OTC drug in the US. In cases like this, make sure to understand the legal classification and avoid claims that suggest 'improving' any bodily action unless you can substantiate and back it up with clear data - i.e. '24 hour protection'. 
4. Training of Social Media Influencers: It is important to train social media influencers to ensure no unsubstantiated claims are made and posts are clearly marked as advertisements. 

Last but not least we'd like to stress that if a claim seems too good to be true, it's likely that it isn't true. Make sure to steer clear from misleading claims and promises you can't deliver. Instead, focus on being transparent and using claims that you can back up with facts. Are there any other claims you'd like for us to cover in a future piece? We'd love to hear your thoughts, so please leave us a note in the comment section below and we might be able to address them in a future post!

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Some useful claims guidance that brands can refer to: 

• Guidelines for Cosmetic Product Claim Substantiation, 2019 (Cosmetics Europe)
• Technical document on cosmetic claims (version of 03 July 2017)
• Environmental and Green Claims Guidance (CTPA)