Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
An ad for hair dye that was published in an organic lifestyle magazine included the text "PHILIP MARTIN'S Italian Organic Lifestyle ORGANIC BASED COLOUR get it in your head our choice IS TO BE PURE no comprise natural products of biological derivation PASSION for NATURE beauty and wellness lifestyle health awareness no petrochemicals no formaldehyde no nickel".
Issue
Herb UK Ltd challenged whether:
1. the claims "ORGANIC BASED COLOUR" and "Italian Organic Lifestyle" misleadingly implied that the products were organic;
2. the claim "no petrochemicals" was misleading because they believed the product may contain Paratoluenediamines (PTDs); and
3. the claims "no formaldehyde" and "no nickel" were misleading because they implied that competitors’ products often contained these chemicals when this was not the case.
Response
1. Candy Harbour Ltd (Candy Harbour) said the wording "Organic Based Colour" and "Italian Organic Lifestyle" were used to communicate the philosophy of the Philip Martin's company and were widely used across all of the company's corporate materials. They stated that the message they sought to communicate to their target market was that Philip Martin's products and the colour in particular were based around natural, organic ingredients. They provided a list of ingredients for Philip Martin’s hair dye products and documents from a French company which certified individual ingredients within some Philip Martin’s cosmetic products as "organic" and/or "natural".
2. They stated that Philip Martin's did not use PTDs in their products and that the claim that the hair dye products contained "no petrochemicals" was therefore valid. They referred to the ingredient lists and ingredient certifications to support the claim.
3. They stated that Philip Martin's had a policy, wherever possible, not to use certain commonly used, harmful chemicals in its products. They stated that the arrangement of the words and phrases including "no formaldehyde" and "no nickel" were used to communicate this philosophy and that whilst they believed the ad made no direct accusations about competitors’ products, they stated these ingredients were commonly used by other manufacturers.
Assessment
1. Upheld
The ad appeared in an industry magazine aimed specifically at hairdressers and we considered the claims would be understood in that context. The hair dye products composition lists detailed the chemical name of each of the ingredients within hair dye products attributed to Philip Martin’s and we noted the ingredients varied depending on the concentration of the product. This resulted in some of the chemicals being present in instances and not in others. We noted Candy Harbour had not specifically demonstrated which concentrations were relevant to products sold by Philip Martin’s and therefore had not demonstrated which of the listed ingredients were present in the hair dye products that were the subject of the ad. Candy Harbour did not specifically identify any of the substances in the hair dye ingredient list as "organic" and noted some of the ingredients appeared to be chemically derived. Evidence was not presented to explain how the certificates of origin supplied by Candy Harbour which stated specific Philip Martin’s’ ingredients were organic were directly applicable to the hair dye products and evidence was not presented to demonstrate that those certificates were issued by an organisation which was recognised by the cosmetics industry as able to provide such accreditation.
Whilst the "organic" label may have been intended as a more general company philosophy, we considered that within the context of an ad which included the text "... no compromise natural products of biological derivation" the claims "organic based colour" and "Italian Organic lifestyle" would be understood to mean that the hair dye products that were the subject of the ad were entirely organic and met an independently defined organic standard. We understood however there was no UK standard for organic hair colouring. We therefore concluded that the claims had not been substantiated and that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
2. Upheld
No information was provided by Candy Harbour to demonstrate that those substances within the ingredient list were not classed as petrochemicals (or derived from petrochemicals) or that the hair dye products did not include PTDs. We therefore concluded that the claim "no petrochemicals" had not been substantiated and that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
3. Upheld
The ingredient list for the hair dye products did not include nickel or formaldehyde. However, we considered that the claim in the ad would be understood by hairdressers as a comparative claim meaning that these ingredients were commonly used in hair dye products used within the industry. Because Candy Harbour had not provided documentary evidence to demonstrate that this was the case, we concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.38
3.38
Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage.
(Other comparisons).
Action
The ad should not appear again in its current form. We told Candy Harbour not to make claims unless they held robust evidence to substantiate them.
