On Monday, the Federal Trade Commission issued a consent order settlement against L’Oreal USA, Inc. (L’Oreal”) which is drawing attention not because of its novel terms—there were none—or because of the amount of money obtained by the Commission—there was none.  Rather, the settlement is important (or at least interesting) because it marks the first action in a very long time by the Commission against a company making purely cosmetic claims.  Recent actions by the FTC against cosmetic companies—such as Biersdorf and L’Occitane—actually involved challenges to weight loss (or cellulite) rather than purely cosmetic claims.  Regular observers of the advertising regulation space have taken it as a given that, given its limited resources and frequently announced enforcement priorities—health and safety related claims such as weight loss, for example—the Commission was content to leave the policing of cosmetic advertising to the National Advertising Division of BBB or private litigation under the Lanham Act.  So what explains the venture by the Commission into the high end cosmetics field?  Well, perhaps two things.  First, the ads by L’Oreal included the claim that products were “clinically proven” to “boost genes’ activity and stimulate the production of youth proteins that would cause visibly younger skin in just 7 days.”  In other ads, the company claimed that its products heralded the “new era of skincare: gene science”.  It is clear from the language of the order that this focus on genes was concerning to the Commission, especially when the claims were accompanied by the assertion that this effect on the genes was proven by scientific studies.  Of note is the fact that the Commission’s action followed an FDA Warning letter issued to L’Oreal on exactly the same claims in which the FDA issued a Close Out letter noting the FDA was satisfied with the Company’s corrective actions.  Finally, in addition to these scientific concerns, it is clear that the FTC did not appreciate L’Oreal’s claims regarding consumer satisfaction which were purportedly derived from consumer responses to a nine part questionnaire.  In fact, L’Oreal combined the favorable responses to the first three “boxes” in the survey to support the representation that 85%, 82% and 91% of consumers agreed with the noted results; in fact, the number that agreed with the results was far lower.  Second, it may well be that the FTC wanted to remind companies that the cop was still on the beat and that while enforcement action had not been frequent in the cosmetics field, there is no “cosmetics exception” to the Federal Trade Commission Act.  The interesting question is whether this action is merely an isolated reminder of that fact, or whether it is the opening of a more vigorous campaign by the Commission against advertising which some claim overplays the effect of science on cosmetics.