“But we don’t need proof.  We sell cosmetics.”

It’s time to relegate that canard to its rightful place:  between “flat earth” and “tooth fairy” in the debunked myths file.  From the FTC’s perspective, companies must substantiate all objective representations – express and implied – that reasonable consumers take from their ads.  Thus, what’s paramount isn’t the nature of the product.  It’s the nature of the claim.

The FTC’s recent settlement with a familiar name in the skincare industry demonstrates the importance of taking steps to avoid a proof goof regardless of whether a product could be classified as a cosmetic, over-the-counter drug, dietary supplement – or something else.  In one of the company’s TV ads, the voice-over claimed that the product “helps redefine the appearance of your silhouette and noticeably firms skin in just four weeks.  So you can rediscover your favorite jeans and how they still get his attention.”  The accompanying visual:  a woman digging into the recesses of her closet, taking out an old pair of jeans, and trying them on to learn that they fit.

The FTC charged that the company promoted the product as a way to slim and reshape the body.  But according to the lawsuit, using the product doesn’t really result in a significant reduction in body size.  That’s why the FTC challenged the claim as false.  In addition to $900,000 in redress, the settlement imposes tough injunctive provisions that cover the product that was the subject of the complaint and any drug, dietary supplement, or cosmetic the company markets for the next 20 years.

If you or your clients sell beauty-related products, it’s a good time to brush up on compliance basics:

• Don’t gloss over your substantiation obligations.  Some cosmetics ads convey subjective benefits – a “kissable glow” or a “heavenly appearance” – that aren’t subject to scientific proof.  But these days, the emphasis in ads on clinical testing and quantifiable results can make prospective buyers wonder if they’re reading a beauty magazine or a scientific journal.  Regardless of the aisle in the store where similar products are sold, if you’re making objective product claims, back them up with solid proof.

• The proof must mirror the claim.  The law is clear:  When the claim is express – “studies show,” “dermatologists agree,” or “users report a 43% improvement” – companies must have at least the advertised level of substantiation.  Absent an express or implied reference to a certain level of support, the FTC looks to a number of factors, including what experts in the field believe is reasonable to prove the claim.

• Puff the magic braggin’.  Some advertisers attempt to minimize their legal responsibilities by dismissing their ad claims as “mere puffery.”  Courts, however, have defined that term narrowly.  In a recent case involving a product sold via infomercial, a federal appellate court described puffery as “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely.”  The court ruled that “specific and measurable claims and claims that may be literally true or false are not puffery and may be the subject of deceptive advertising claims.”

Lesley Fair is an attorney with the FTC’s Bureau of Consumer Protection.

2011