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30 November 2015 | beautystorebusiness.com Beauty & The Law BEAUTY PRODUCTS TRULY ARE THE GREATEST things since sliced bread. How does one get that message out to consumers? As you would expect, numerous laws govern the content of advertising messages and how those messages are distributed. There is an entire industry engaged in enforcing advertising laws made up of lawyers bringing class-action lawsuits, your competi- tors, the National Advertising Division of the Council of Better Business Bureaus, the Federal Trade Commission, state agencies and others. Not surprisingly, many beauty companies have had to defend themselves from allegations of deceptive advertising. BEAUTY PRODUCT-ADVERTISING REQUIREMENTS Advertising laws generally require that all ads must be truthful and substantiated, and prohibit ads that are deceptive or unfair. The FTC has issued guides explain- ing what each of these terms mean, and while different laws have different requirements, the FTC's guides are broadly applicable. ✔ Deceptive ads mislead consumers A deceptive ad is one that is likely to mislead consumers by a statement or omission that is material to whether a consumer buys the product or not. The question is not whether a particular consumer decided to buy the product based on the ad, but whether a typical target of the ad would reasonably find the information in the ad to be important to buying or deciding not to buy the product. For example, ads for hair color that cover gray would be evaluated according to what a reasonable woman would find important, and ads for salon disinfectants would be evaluated according to what a reasonable salon or barbershop owner or manager would be likely to think. A deceptive claim may be implied from the entire ad and the nature of the sale. There is an implied claim that the product is fit for the use for which it is advertised, so, for example, makeup shown in an ad on a model's eyelid must be safe for use on eyelids. Not all misinterpretations will mean that an ad is deceptive. The FTC gives an example of a consumer who is misled by an ad for Danish pastry to believe that the pastry is made in Denmark. That baker has not published a decep- tive ad. A manufacturer of French manicure kits or Brazilian waxing kits would not be liable if someone incorrectly believes that they were made in France or Brazil. A claim must be material to the consumer's purchas- ing decision before it will be found deceptive. Although every statement in the ad will be presumed to be mate- rial, health and safety claims are given special weight. The FTC has said that the term "unfair" was intended to be a broad and flexible standard that allows the FTC to respond to ads and claims that were not thought of when the FTC Act was passed. An unfair ad must cause substantial consumer injury that is not outweighed by benefits of its use. For example, advertising a defective product is unfair if the consumer can't return it. ✔ Claims must be substantiated An ad is substantiated if the advertiser has a reasonable basis for the claims, including objective evidence support- ing the explicit and implied claims in the ad. If the ad says that "3 out of 4 nail technicians prefer our product," then the advertiser must have a reliable survey that reaches that conclusion. The level of proof beauty-product advertisers must have depends on the amount of proof that experts in the field would expect. Health and safety claims must be backed by "competent and reliable" scientific evidence, which includes studies accepted by qualified reviewers. Anecdotes from customers don't qualify as competent and reliable scientific evidence. ENFORCEMENT ✔ The FTC enforces its advertising law against beauty businesses The FTC has brought enforcement actions against numerous beauty-product advertisers, including an enforcement against L'Occitane. Earlier this year the FTC distributed more than $400,000 in refund checks to consumers who bought L'Occitane's Almond Beauti- ful Shape or Almond Shaping Delight skin creams. The FTC's complaint said L'Occitane's ads falsely claimed that Almond Beautiful Shape trims 1.3 inches from cus- tomer's thighs in four weeks, and that there is clinical proof that Almond Shaping Delight slims bodies in four weeks. L'Occitane and the FTC settled the charges, and L'Occitane agreed, among other things, to pay $450,000 to the FTC and not to make any claims that topically applied products, except for drugs approved by the U.S. Food and Drug Administration, cause substantial weight loss or reduction in body size. The FTC also investigated ads by Tria Beauty for its line of hand-held laser hair removal devices. The FTC alleged Tria's ads for its in-home products gave "the impression that Tria users would achieve the same results as profes- sional lasers in the same amount of time" although they were less powerful than the lasers for professional use. Last July the FTC wrote to Tria's counsel that it would not recommend enforcement because Tria had stopped making those claims before the FTC began its investiga- tion, Tria agreed to change the claims on its website, it stopped using celebrity endorsements that made claims the FTC said were unsubstantiated, and it agreed to address issues that the FTC staff raised. In 2014, L'Oréal USA settled FTC allegations that its ads for Lancôme Génifique and L'Oréal Paris Youth Code were deceptive in violation of the FTC Act. The FTC took exception to ads that said these two products All About the Advertising Of Beauty Products Here's why ads about beauty products must be truthful, substantiated and non-deceptive. by Jean Warshaw Image courtesy of Barry Burns Although every statement in the ad will be presumed to be material, health and safety claims are given special weight.