Will Sea & Ski sun care products get burned before the FTC, FDA?
Bayer HealthCare, a manufacturer of sunscreen products, brought complaints against competitor Sea & Ski before the National Advertising Division (NAD) in September.
Sea & Ski, a product line owned by Cross Brands Manufacturing, is in many ways a typical sunscreen product, offering protection against ultraviolet rays. But the brand decided to set itself apart from the pack with new claims, which is why it caught Bayer’s attention.
Cross Brands claims that Sea & Ski products protect users against infrared radiation, using a variety of claims including “Beyond UV with IR-GUARD infrared protection” and “INFRARED sunscreen protection for your skin from free radical damage caused by long-term exposure to IR-A waves.”
The problem is, as Bayer claims, Sea & Ski doesn’t protect anyone from infrared radiation. In fact, Bayer maintains that there is no proof that infrared rays are dangerous in the first place.
The NAD agreed with Bayer, determining that Cross Brands’ “in vitro” testing (testing in petri dishes or tubes as opposed to testing on humans) could not substantiate the company’s infrared protection claims. In addition to criticizing the company’s alleged incomplete studies, the NAD found that the in vitro test did not indicate how well the product might work when actually spread on human skin.
And now that you’re nervous about a whole new invisible threat to the well-being of your skin, the NAD stepped back from addressing whether infrared rays pose an actual threat to anyone.
“Because the advertiser’s evidence did not support its claims that its products provide consumer relevant screening of infrared solar rays,” the division wrote, “[we] did not reach the issue of whether protection from infrared rays is, in fact, a health benefit or that infrared solar radiation protection helps prevent ‘free radical damage caused by long-term exposure to IR-A waves.’”
The NAD asked Cross Brands to pull “infrared protection” claims and to stop claiming that Sea & Ski’s protection went “beyond UV.”
In a bold move, Cross Brands responded to the challenge by not responding at all, neglecting to file an advertiser’s statement with the division. With the sand kicked in its face, the NAD turned the case over to the Federal Trade Commission and the Food and Drug Administration for further action. Advertisers that choose not to participate in the self-regulatory process, or those that do not agree to abide by the NAD’s decisions, should be reminded of the consequences of such a course – referral to law enforcement agencies.