What are the Two Things Missing in the FTC Settlement with L’oreal?

In national advertising campaigns that encompassed print, radio, television, Internet, and social media outlets, L’Oreal claimed that its Génifique 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,” and would provide results to specific percentages of users. Similarly, for its Youth Code products, L’Oreal touted – in both English- and Spanish- the “new era of skincare: gene science,” and that consumers could “crack the code to younger acting skin.” Charging as much as $132 per container, L’Oreal sold Génifique nationwide since February 2009 at Lancôme counters in department stores and at beauty specialty stores. The company has sold Youth Code, which costs up to $25 per container at major retail stores across the United States, since November 2010. Flip through a magazine and it’s apparent that test tubes are overtaking powder puffs in how some cosmetics are marketed. When L’Oreal touted the scientific research behind their advertising – like any other objective representation – they needed appropriate support. According to an FTC lawsuit, L’Oreal USA overstated the science behind claims for products in its Lancôme Génifique and L’Oreal Paris Youth Code lines. The proposed settlement underscores that requirement. The ads for the Lancôme Génifique line went far beyond “subjective” beauty claims, emphasizing instead that there was science behind the products: “Genes produce specific proteins. With age, their presence diminishes. Now, boost genes’ activity and stimulate the production of youth proteins.” In fact, they promised “visibly younger skin in just 7 days,” L’Oreal went on to state that its claims were “clinically proven.” Except there was no clinical trials. Ads for L’Oreal Paris Youth Code struck a similar scientific chord, touting the “new era of skincare: gene science” …. “crack the code to younger acting skin.” L’Oreal Paris Youth Code ads also prominently featured a bar graph labeled “CLINICAL STUDY” that purported to show that the product targeted specific genes to make skin act younger and respond five times faster to aggressors. But, as the complaint details, the study didn’t test any L’Oreal Paris Youth Code product or even one of the ingredients. The CLINICAL STUDY just evaluated gene expression – the process by which genes produce proteins – in young and older groups of men and concluded that the expression of certain genes was delayed in aged skin. Fair enough, but does that support L’Oreal’s advertising promises? Apparently it does not. “It would be nice if cosmetics could alter our genes and turn back time,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “But L’Oreal couldn’t support these claims.” Under the proposed administrative settlement, L’Oreal is prohibited from claiming that any Lancôme brand or L’Oreal Paris brand facial skincare product targets or boosts the activity of genes to make skin look or act younger, or respond five times faster to aggressors like stress, fatigue, and aging, unless the company has competent and reliable scientific evidence substantiating such claims. The settlement also prohibits claims that certain Lancôme brand and L’Oreal Paris brand products affect genes unless the claims are supported by competent and reliable scientific evidence. Finally, L’Oreal is prohibited from making claims about these products that misrepresent the results of any test or study. Thus, the first thing that is missing is any competent and reliable scientific evidence to support their advertising copy thus making it false and deceptive advertising and a violation of Article 5 of the Federal Trade Commission Act. So, what is the second thing missing from this action? How about any restitution to the consumers who purchased the product based upon these false representations…. The FTC says, “While we're on the subject of who's worth it, when it comes to appropriate proof for objective claims, we think consumers are worth it.”…but not worth a refund? Makes you wonder doesn’t it?