Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
Claims on the Skinny Tan Facebook page and on www.skinnytan.co.uk:
a. The Facebook post, seen in September 2016, stated "UK Mum of two invents a new way to Tan [sic], tone and look thinner AND this summer it became the UKs [sic] No 1! No orange no streaking and no nasty smell! Skinny Tan is the first tanner to combine 100% certified natural tanning with organic smoothing oils and firming guarana berries. In independent trials 84% reported that Skinny Tan gave them smoother skin and less visible cellulite. 86% reported a streak-free even result that didn't dry their skin like other tanners. And over 90% said it smelt delicious! Gentle on your skin ... Isn't it time you made the switch to the tanner that is good for your skin?".
b. The "Tanning Tips" page on the website, seen in January 2017, stated "No matter what time of year it is "Tanning" is a fantastic way to help your body look instantly toned. It can hide cellulite and give you an all over healthier glow ... Look for the natural alternatives No-one should be putting chemical DHAs on their skin anymore as there are now tanners available that use a tanning agent that works naturally with your skin to create a far more natural looking colour. A great advantage is that these natural agents don't smell so strongly of that awful fake tan smell. All Skinny Tan tanners are made with a seed tanner plus they also use naturally derived Guarana that together with the tan will help make cellulite look visibly smoother and less obvious".
Issue
PZ Cussons Beauty LLP challenged whether:
1. the claim "the UKs [sic] No 1" in ad (a) was misleading and could be substantiated;
2. ad (b) gave the misleading impression that Skinny Tan did not contain DHA and therefore smelt better than other tanning lotions;
3. the claims in ads (a) and (b) that the product was “natural” were misleading; and
4. the claims in ads (a) and (b) that the product had smoothing and firming effects on the skin, would make consumers look thinner and reduce the appearance of cellulite were misleading and could be substantiated.
Response
1. Innovaderma UK Ltd t/a Skinny Tan responded that their claim to be the “UKs [sic] No 1” was based on them being the No 1. Sales value ex VAT self-tan brand within a major pharmacist in that year to date.
2 & 3. Skinny Tan stated that their product contained DHA from natural sources and that their product was made of 100% natural ingredients and provided a certification from an organic certification company which verified this.
4. Skinny Tan stated that it was commonly believed that tanning could make you look thinner. They stated that, like with contouring in makeup, people used tanning to look healthier, thinner and to reduce the appearance of cellulite. They provided a trial based on 50 users of the product which showed that a high percentage of these users felt that the product made them look thinner and reduced the appearance of cellulite. Skinny Tan stated that their claims were in regard to the cosmetic effect of the tan, rather than any physiological effects and that they were making claims about the appearance only.
Assessment
1. Upheld
The ASA considered that in this context consumers would generally understand the claim “the UKs [sic] No.1” to mean bestselling across the whole market. We considered that consumers would regard this claim to refer to the overall market for self-tanning products. Skinny Tan said they were referring to the much narrower category of No 1. Sales value ex VAT self-tan brand within Superdrug YTD, although we were not provided with evidence to demonstrate that was the case.
Because Skinny Tan were not able to demonstrate that they were the bestselling product across the whole market we therefore concluded that the claim "the UKs [sic] No 1" in ad (a) was misleading.
On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
2. Upheld
We considered that the claim in ad (b) that “No-one should be putting chemical DHAs on their skin anymore as there are now tanners available that use a tanning agent that works naturally with your skin” would be regarded by consumers as a comparative claim, with the implication that other products contained chemical DHAs whereas Skinny Tan’s product was a natural tanning agent. We considered that the ad implied that Skinny Tan’s product did not contain DHA since, rather than contrast “chemical DHAs” with natural DHA, or naturally occurring DHA, the product claimed to use “a natural tanning agent”. However, we understood that the product did contain DHA. The ad went on to say “A great advantage is that these natural agents don't smell so strongly of that awful fake tan smell” which we considered would be understood to mean the advertised product smelt different, and better than, products containing “chemical DHAs”. However, we had not seen any evidence that this was the case. Additionally we did not see evidence that the DHA contained in Skinny Tan was different to that of other products. Because the product contained DHA, and because we had not seen any evidence that it smelt better than products containing other DHAs, we therefore concluded that the claims in ad (b) were misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
3. Upheld
We considered that the claims in the ads that the product was natural such as “100% certified natural tanning” in ad (a) and “Look for the natural alternatives” in ad (b) would be taken by consumers to mean that the products were made from natural ingredients and were made using natural methods which did not include a high level of processing. We also considered that consumers would regard the claim “100% certified” to mean that the product as a whole had received a certification that it was “natural”.
We acknowledged that Skinny Tan had provided evidence to show that its products were made using natural ingredients. However, the ASA did not receive sufficient information about the way that the product was manufactured; especially what level of processing took place to conclude that the product as a whole was natural rather than just the ingredients. We also did not receive evidence that the product as a whole, rather than just ingredients that made up the product had been independently certified as “natural”. We therefore concluded that the “natural” claims were misleading.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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).
4. Upheld
We considered that some of the claims in the ads went beyond describing cosmetic effects and described physiological benefits and would therefore need to be substantiated by an appropriately robust body of evidence. We considered that the claim in ad (a) that “UK Mum of two invents a new way to Tan [sic], tone …” implied that the product would assist with toning rather than simply the appearance of toning because, taken on its own the claim did not qualify that this referred simply to appearance. Ad (a) also included other claims that suggested physiological benefits to the product such as “Skinny Tan gave them smoother skin and less visible cellulite”. We also considered that the claim in ad (b) that “derived Guarana that together with the tan will help make cellulite look visibly smoother and less obvious” would be understood to imply that Guarana had properties that reduced cellulite.
We considered that the trial provided by Skinny Tan was not adequate to substantiate that the product had any benefits beyond appearance. The trial was carried out by volunteers and evidence was gathered based on their observations of their physical appearance. We considered that this did not constitute a substantive body of evidence to support the claims that Skinny Tan could be used to “tone” or to give somebody “smoother skin” or “less visible cellulite” or that Guarana could be used to make cellulite look “visibly smoother and less obvious”. We therefore concluded that the claims in the ads were misleading.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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).
Action
The ads must not appear again in their current form. We told Skinny Tan not to: refer to their products as “No 1”; imply that they did not contain DHA; or imply that its smell was better or that this was a result of other products containing DHA.
We also told them not to state or imply that their product as a whole was natural, to state or imply that it has any benefits beyond cosmetics, to state or imply that Guarana had properties that reduced cellulite or gave the appearance of reducing cellulite or to state or imply that the product reduced the appearance of cellulite.
