The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest. This post addresses Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 2016).
As part of its ongoing monitoring program, NAD reviewed Intraceuticals’ advertising claims that its Atoxelene Skin Care Products and Atoxelene Line Wand eliminate wrinkles. Among other express claims that NAD reviewed, were the following:
- “Gets rid of wrinkles instantly – and they actually stay gone.”
- “It’s not only effective, its 100% reliable.”
- “Results are immediate.”
NAD determined that Intraceuticals failed to provide a reasonable basis for these claims. NAD disapproved of Intraceuticals’ small-scale trials of its products. Intraceuticals conducted three tests of the Atoxelene Line Wand. First, Intraceuticals tested the line wand on ten of its own staff members. Second, Intraceuticals tested its products on seven volunteers who were asked to report on their experience immediately after using the product. Third, Intraceuticals also conducted a randomized, double-blind study of ten subjects. While NAD found a number of issues with these tests, its chief criticism was that Intraceuticals’ test populations were too small at only seven or ten test subjects. Such a small sample size increases the possibility that the tested individuals are not representative of the targeted consumers. In addition, NAD was concerned that using employees as test subjects could bias the results. NAD therefore concluded that the results stemming from these tests of the Atoxelene Line Wand were insufficient to support Intraceuticals’ advertising claims.
In addition, NAD disapproved of Intraceuticals’ testing of isolated, individual ingredients within its Atoxelene Skin Care Products, rather than testing the product as a whole. Intraceuticals tested specific ingredients both in vitro (in a controlled laboratory environment) and in vivo (on a whole, living organism). NAD warned that in vitro testing of isolated ingredients had little or no validity in ascertaining the impact that a product will have when used by humans. Also, NAD found that in vivo testing of isolated ingredients was inadequate in this instance because Intraceuticals’ marketing summaries failed to sufficiently describe the details of the test methodology or the results for each test subject. More generally, NAD explained that testing particular ingredients in isolation cannot substitute for testing the product as a whole, particularly when a combination of ingredients affects the product‘s performance. When testing is limited to the efficacy of an isolated ingredient, any claims based on the testing would have to be similarly limited to the ingredient itself.
Intraceuticals accepted NAD’s recommendation and agreed to modify or discontinue its advertising claims. It looks like Intraceuticals may also have to fix a few wrinkles in its testing procedures before it makes further advertising claims.