Posted 24 June 2021
A consumer complaint was laid with the Advertising Regulatory Bureau against the advertising of Nivea “Perfect & Radiant Luminous630 Anti Dark Marks Serum”.
The complainant submitted that he contacted Nivea and asked for evidence of these “extraordinary” claims. Nivea was unwilling to provide any evidence, citing reasons of confidentiality, but assured him that “… the study was conducted in compliance with the necessary international and local standards applicable”.
The complainant therefore turned to the ARB arguing that without evidence, the claims cannot be justified.
Nivea supplied evidence.
Decision of the Advertising Regulatory Board
Complainant: Dr Harris Steinman
Advertiser: Beiersdorf Consumer Products (Pty) Ltd
File reference: 1472 – Nivea Luminous 630 – Dr Harris Steinman
Date: 24 June 2021
The Directorate of the Advertising Regulatory Board has been called upon to consider a consumer complaint against advertising promoting the Advertiser’s “Perfect & Radiant Luminous630 Anti Dark Marks Serum”. The Complainant noted that the product was advertised on M-Net during April 2021, making the same claims as those appearing at https://www.nivea.co.za/products/perfect-and-radiant-luminous630-anti- dark-marks-serum-60010510044540147.html.
Description of the Advertising
The Directorate was not provided a copy of the relevant television commercial. However, the Complainant submitted that the commercial made the same claims as those appearing on the advertiser’s website. He specifically objected to the following claims:
- “Even & luminous skin”,
- “Acts on existing pigmentation to lighten dark marks and reduce their size. Visible results in 4 weeks*”,
- “Works in conjunction with skin’s natural melanin production to reduce the appearance of new dark marks and spots”,
- “Effective on all skin tones”,
- “The advanced lightweight serum contains the highest concentration of the breakthrough ingredient Luminous630 which visibly reduces 10 years of dark marks in 4 weeks*”,
- “The dual action formula acts on existing pigmentation to visibly reduce marks, while also working in conjunction with skin’s natural melanin production to reduce the appearance of new dark marks”.
The asterisked claims refer to the note: “*PIU Study, 4 week application, Study on 215 South African Women”.
The Complainant submitted that he contacted the Advertiser and asked for evidence of these “extraordinary” claims. The Advertiser was unwilling to provide any evidence, citing reasons of confidentiality, but assured him that “… the study was conducted in compliance with the necessary international and local standards applicable”.
He expressed doubts over the likelihood that these claims were justifiable, and noted that
he has not found any published research on this “miraculous” product.
In subsequent correspondence, the Complainant provided a copy of an email received from the Advertiser, in which it sets out why it believes that the claim “SA WOMEN AGREE: VISIBLY REDUCES 10 YEARS OF DARK MARKS IN 4 WEEKS”, with the disclaimer, “PIU STUDY, 4 WEEK APPLICATION, 215 SOUTH AFRICAN WOMEN” was justified. The Complainant indicated that this was still unsatisfactory, as it amounted to little more than just the say-so of the Advertiser.
The Advertiser submitted that the ARB Code expressly requires complainants to clearly state the grounds of their complaints. The Complainant has not motivated why he believes the claims to be “extraordinary” and has not provided any basis for doubting the legitimacy of these claims.
This is contrary to the spirit and procedural requirements of the Code, and puts the Advertiser in a position where it has to second-guess the reasons for the Complainant’s objections. In the event that its interpretation differs from that of the ARB differs, it would clearly be prejudiced.
It addressed the matter in terms of Clause 4.1 of Section II of the Code, and submitted,
inter alia, the following documents:
- A report titled “In Vivo Determination of Skin Appearance Improving Efficacy: Clinical and Self-assessment”,
- A report from Spincontrol Asia Co., Ltd titled “Evaluation of the In Vivo Efficacy of One Cosmetic Product Clinical Evaluation, Chromametry, Digital Photography, Corneometry, Self-Grading and Self-Assessment Skin Type Female Subjects”,
- An evaluation report prepared by Mr John Knowlton of Cosmetic Solution, dated 8 May 2021, and
- A 4-week Product-In-Use (“PIU”) study, titled “Project Aurora PIU Claims test”.
It confirmed that the product tested in these documented reports was identical to that being sold in South Africa as Nivea Perfect & Radiant Luminous630 Anti Dark Marks Serum – the subject of the complaint. The relevant claims are supported by the studies submitted and are verified as accurate and true by a SAMRA-accredited researcher as well as Mr John Knowlton, an industry expert accepted by the Advertising Standards Authority on several occasions in the past.
Given the confidential nature of the studies, it also made non-confidential versions available to the Directorate in accordance with Clause 5.2 of the Procedural Guide.
Application of the Code of Advertising Practice
The Complainant indicated that Clause 4.1 of Section II (Substantiation) was relevant to this dispute.
Having considered all the material before it, the Directorate of the ARB issues the following finding.
The Advertiser argued that the Complainant has not articulated the basis of his objection, and that he has provided no explanation as to why he is of the view that these claims are extraordinary, or that they are not justifiable.
Clause 3.3 of the Procedural Guide sets out the basic criteria for submitting a complaint to the ARB. Among these, Clause 3.1.3 notes: “The grounds on which the complaint is based must be clearly stated. If possible, the sections of this Code to which the complaint relates, should be identified …”
In his original complaint, Dr Steinman listed the claims to which he objected and wrote:
“I wrote to Nivea to ask for evidence for these claims.
… the Consumer Affairs Manager for Beiersdorf Consumer Products … responded with the following comment:
You are indeed correct that our 4-week Product-in-Use Study for the product in question was conducted on 215 South African women. Unfortunately, the study mainly comprises confidential and proprietary information and as such, cannot be shared with any third parties. We can, however, assure you that the study was conducted in compliance with the necessary international and local standards applicable.
Extraordinary claims require extraordinary evidence.
As I doubt whether these claims are justifiable, and have found no published research on this ‘miraculous’ product.
I suggest that the claims are unlikely, and at least not to be applicable to 100% of ‘all skin types’ as claimed by the company. If my suspicions are correct, the advert is misleading and contrary to the ARB code which is intended to protect consumers and advertising”.
The Directorate is satisfied that the Complainant has provided grounds for his objections. It is not expected that a complainant be able to provide evidence disproving the claim. They simply need to show that they have some reasonable basis for questioning the claim. It appears that the Complainant searched for proof of the relevant claims because he did not believe them to be true. When he found no proof, he asked the Advertiser for evidence.
When the Advertiser refused to provide evidence, he submitted his complaint with the ARB.
The complaint therefore appears to meet the requirements of Clause 3.1.3 of the Procedural Guide. As such, the Directorate now turns to the question of substantiation for the relevant claims.
Clause 4.1 of Section II requires advertisers to hold independent verification from an acceptable, credible expert in the field to which the advertised claim(s) relate. Because the ARB does not possess the scientific expertise to evaluate scientific data generated in every possible industry, it relies on the informed opinion of such independent, credible experts when determining whether advertised claims appear to be supported by suitable evidence.
Dealing specifically with documentary evidence based on survey data, Clause 4.1.3 stipulates that the research must either emanate from a Southern African Marketing Research Association (“SAMRA”) accredited marketing researcher or an entity acceptable to SAMRA, and that this entity must confirm the accuracy of the claims supported by such survey data.
The asterisked disclaimer “*PIU Study, 4 week application, Study on 215 South African Women” is said (in the Advertiser’s response) to refer to the Advertiser’s 4-week Product- In-Use (“PIU”) study, titled “Project Aurora PIU Claims test”, dated October 2020. A confidential version of this study was attached as “Annexure D”, and a non-confidential version was provided as “Annexure H”.
Both Annexure D and its non-confidential version Annexure H were prepared by GfK South Africa and refer to “Project Aurora”. Non-confidential Annexure H was signed-off by Joseph A Boniaszczuk and Rachel Thompson. The Advertiser submitted that Mr Boniaszczuk was an independent marketing sciences, sampling and analysis consultant contracted by GfK South Africa, and that he has been a SAMRA member and Accredited Researcher since 2011. It added that GfK globally was a member of ESOMAR, and that SAMRA uses the ESOMAR code of conduct as its own. Mr Boniaszczuk also confirms this in his letter (Annexure H). Insofar as explaining the justification for the claims, he notes as follows:
“More specifically, the study validates the following advertising claims made in respect of the Nivea® product tested in Project Aurora:
- ‘Even & luminous skin’;
- ‘Visible results in 4 weeks’; c. ‘Visibly reduce marks’;
- ‘Reduce the appearance of new dark marks and spots’; and e. ‘Visibly reduces 10 years of dark marks in 4 weeks’.
I and GfK South Africa therefore confirm that the above claims of consumer agreement made are fully substantiated in terms of sections 4.1.1 to 4.1.3 of ‘CODE OF ADVERTISING PRACTICE …”
It therefore appears that, in accordance with Clause 4.1.3 of Section II of the Code, these claims, based on survey data, have been confirmed to be accurate by a SAMRA-accredited entity.
In addition to the above, the Advertiser also submitted a confidential report (“Annexure C”), as well as a non-confidential version of this report (“Annexure E”), from Mr John Knowlton of Cosmetic Solutions. Mr Knowlton had been accepted as an independent and credible expert in the field of cosmetic products on numerous occasions by the ARB’s predecessor, the Advertising Standards Authority, and by the ARB itself, and there is nothing before the Directorate to suggest that his status in this regard has changed.
Mr Knowlton references all the studies submitted by the Advertiser. He notes, inter alia, that the study conducted by Beiersdorf/SGS was a 12-week study using female subjects with various skin types, using both clinically graded and self-assessed research techniques. He further confirms that:
- There was a significant increase in skin evenness assessed by self-grading when using the test
- There was a significant decrease in dark spot intensity (lightness) of pigmentation, as determined by clinical grading, when using the test
- There was a significant decrease in dark spot visibility (contrast) in comparison to surrounding area, as determined by clinical grading, when using the test
- There was a significant decrease in visibility (contrast) of spots represented by an increase of scores as determined by self-grading, when using the test
The Directorate also notes that his confidential report (“Annexure C”) comments not only on the PIU study referenced in the disclaimer, but also the other studies listed under the response. When discussing the evidence that applies to each of the disputed claims, he unequivocally confirms that, in his professional opinion, the relevant claims are factually substantiated within the meaning of the Code, either through self-assessment or through assessment by a trained assessor.
In addition, he explains that the product contains a patented ingredient which, by virtue of the patent, means that no other company is permitted to use this ingredient. Therefore, the Advertiser can, inter alia, claim to have “… the highest concentration of the breakthrough ingredient Luminous630 …”
It therefore appears that the Advertiser has provided evidence to show that its claims, irrespective of whether they are based on survey-type data, or on instrumental testing, have been unequivocally verified as true by both a SAMRA-accredited researcher and an independent and credible expert in the field to which the claims relate.
While the Directorate has some discomfort in the fact that the online advertising does not pertinently state that the claims are predominantly based on survey-type data, this is not within the scope of the current complaint.
The Complainant merely argued that there was no evidence to support the claims. The Advertiser has provided evidence of studies done, and unequivocal verification from acceptable experts to show that the conclusions drawn by these studies are adequate and justifiable.
Given the above, and given the submissions from GfK Africa and Mr Knowlton, the Directorate is satisfied that the claims in question appear to comply with the provisions of Clause 4.1 of Section II of the Code.