Manufacturers, distributors, and retailers often tout the anti-aging effects of certain cosmetics. Of course, the term “anti-aging” is not intended to literally mean that a product prevents aging. To the contrary, it is understood within the industry, and by consumers, as describing a product that is designed to mitigate, mask, or change certain cosmetic indicators that come with age. These typically include wrinkles, discoloration, or a loss of skin firmness.
The plaintiffs’ bar often gravitates to anti-aging claims and alleges, as part of putative class actions, that products which describe anti-aging properties are deceptive. Typically complaints against anti-aging products lack affirmative evidence that a cosmetic product fails to produce the advertised effect and rather attempt to challenge the sufficiency of an advertiser’s substantiation for an anti-aging claim, or, more recently, attempt to characterize an anti-aging product as an unregistered “drug” for which FDA approval should have been obtained. The following provides a snapshot of information concerning anti-aging litigation.
The number of cases handled by the National Advertising Division of the Better Business Bureau that reference “anti-aging” or “wrinkle” claims within the last five years.1
Number of FTC enforcement actions filed against businesses and individuals for deceptive anti-aging claims in advertising
Marketers of cosmetic products should consider the following when reviewing their anti-aging claims, and their potential exposure to litigation:
- Structure Claims to Focus on Consumer’s Perception. Most cosmetic products are designed to conceal, mask, or mitigate the visual effects of aging, not to reverse the aging process itself. Consider drafting advertising language to make clear that the cosmetic product is designed to reduce the appearance of an aging characteristics, such as wrinkles, can help avoid a plaintiff from trying to characterize an advertisement to a court as claiming that the product in fact reduces the aging process itself – i.e., reduces the wrinkles, not simply the appearance of the wrinkles.
- Establishment Claims. An “establishment” claim refers to an advertisement that makes clear the type, and quantity, of evidence that the advertiser has to support a statement. Courts often evaluate establishment claims by asking whether the advertised level of evidence exists. If it does, the claim is arguably not deceptive. By drafting advertising language to include mainly establishment evidence, and thus disclosing to consumers the precise quantity and type of evidence that supports a claim, a marketer can often pre-empt an argument by a plaintiff’s attorney that the marketer should have had a greater quantum of evidence.
- Prior Substantiation. The Federal Trade Commission, as well as some state regulators, take the position that a marketer is required to have substantiation (i.e., proof) that supports an advertising claim before that claim is made. Although plaintiffs often seize upon the position of regulators, most courts have held in the context of private litigation that a company is not required to keep substantiation for each claim that it makes, and that a complaint cannot be filed in order to “fish” for the substantiation that may, or may not, support an advertising claim.