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					                                                                                09/080
                                     DECISION

                               Meeting 12 May 2009


Complaint 09/080

                      Complainant: A. McKay
                      Advertisement: Brand Developers – Thin Lizzy

Complaint: The television for advertisement for the Thin Lizzy mineral foundation
(Key No. BD/120/TLMT2) contained a voice-over that began “Is your foundation
causing you problems? Can’t show your face…Never enough coverage…feels
heavy and unnatural on your skin? Do you even know what’s in your foundation? Go
on, take a look, Chances are you’ll find a toxic chemical cocktail that may be
damaging your skin.”


Complainant, A. McKay, said:

“During the advert for this product an insinuation was made that most competitors'
products were "toxic". To make a claim that other similar products are actually 'toxic'
appears to me to be misleading and unfairly maligns the competition. It certainly
sounded like slander to me (an average member of the public).”


The Chairman ruled that the following provisions were relevant:

Code of Ethics

       Basic Principle 4 - All advertisements should be prepared with a due sense
       of social responsibility to consumers and to society.

       Rule 2: Truthful Presentation - Advertisements should not contain any
       statement or visual presentation or create an overall impression which directly
       or by implication, omission, ambiguity or exaggerated claim is misleading or
       deceptive, is likely to deceive or mislead the consumer, makes false and
       misleading representation, abuses the trust of the consumer or exploits
       his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as
       such, is not considered to be misleading).

       Rule 6: Fear - Advertisements should not exploit the superstitious, nor
       without justifiable reason, play on fear.
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Code for Comparative Advertising

       Guideline (a) - Comparative advertising should be factual and informative
       and should offer a product or service on its positive merits. The intent and
       connotation of the advertisement should be to inform and not to discredit,
       disparage or attack competitors, competing products or services directly or by
       implication


The Advertiser, Brand Developers – Thin Lizzy, said:

“The complaint has been listed against the Coded of Ethics Basic Principle 4; Rule
2; Rule 6 and the Code for Comparative Advertising.

The complainant is of the opinion that this TV advertisement is slandering other
comparative products. While we accept their right to complain, we do beg to differ
most strongly.
Food experts are forever extolling consumers to "read the label". Check the
ingredients of the food products that they and their families are putting inside
themselves.
Health specialists always propend - "read the label, follow directions".
Now beauty product manufacturers are starting to say "check what you are putting
on the outside of your body as well.. Cosmetic products comprise a multitude of
different elements and ingredients besides the basic formulation, be it a hair, skin or
lipstick application. Most of these ingredients are universally OK, but some do cause
irritation or an allergic reaction in some people.
Women world over trial various brands not for how the product looks but for how it
feels to them on their skin. If beauty really is only skin deep, this is the real test.
This process tends to be a hit and miss, trial and see, way of testing. Thin Lizzy is
one of the few cosmetic brands that is suggesting that women should identify and
isolate those elements that do react adversely with their skin. Like food, like
medicine - you should read the label first and know the product will suit your skin
before considering the beauty enhancing aspects. This is especially important for
women with problem or sensitive skin. Mineral based makeup was developed many
years ago by plastic surgeons because it was so much kinder to the regenerating
skin than standard cosmetic but it is not unique to Thin Lizzy.
However it is interesting to note that the Thin Lizzy campaign for a mineral based
product has been closely followed by at least two of the world leading labels with a
very similar approach. An average viewer might even be inclined to think there was
an element of copycat.
The international cosmetic industry is cut-throat to the extreme, if there had been a
vestige of slander, the slightest inference of knocking, or a modicum of misleading
claim within the Thin Lizzy ad, an army of international lawyers would have lasered
an instant path to the ASA door, or even to the courts. They take no prisoners. An
informed decision is all Thin Lizzy is asking a consumer to make. Know thyself;
know thy skin; and check the ingredients of your beauty product choice.
Thin Lizzy has 9 different ingredients. Of those only Bismuth Oxychloride has a low
chance of allergic reaction.
Other leading labels incorporate up to 30 ingredients to achieve their point of
difference, but up to four or five ingredients have the potential for a negative
reaction.
                                            3                                      09/080




These include:
       •       Butynol glycol has a similar toxicity to ethylene gycol
       •       Polymethyl methacyclate - used in nail polishes as well as make
               powders - is a strong irritant
       •       Octydodecyl stearoyl stearate - safe generally but regarded asa
               possible senitizer for allergic people. Often avoided by vegans who
               believe it comes from animal fat
       •       Cetyl acleohol - low toxicity but can cause hives
       •       Quaternay ammonium compounds - can be toxic depending on dose
               and concentration but even 0.1% can cause irritation to nose and
               mucous membrane.

All these definitions have been sourced from the Consumer Dictionary of Cosmetic
Ingredients by Ruth Winter MS.
The Thin Lizzy TVC does not suggest other labels contain all or even some of these
ingredieints, even though they do. It is simply saying as a consumer
recommendation - read the label, know what you are buying. If the ingredients meet
with your approval or acceptance, then the end result on the skin is a purely
aesthetic choice, where beauty is entirely in the eye of the beholder.
If the complainant has a wife and or daughters, surely he would put their health and
skin-wellbeing first, and encourage them to know and understand to composition of
their cosmetics.
Brand Developers believe there is no case to answer with Comparative Advertising,
and all aspects of the Code of Ethics are truly met and covered.”


Commercial Approvals Bureau (CAB) said on behalf of the media:

“We have been asked to respond to this complaint under the Code of Ethics, Basic
Principle 4 - social responsibility; Rule 2 - truthful presentation; Rule 6 - fear and the
Code for Comparative Advertising - Guideline (a) - factual and informative.

A complainant queried the claims made in this advertisement that some foundation
products may contain chemical toxins damaging to your skin.

Like all cosmetic commercials there is an accepted use of hyperbole. Because it is
such a hugely competitive international market any incorrect factual claims made
are very quickly raised by competitors.

Mineral makeup is the latest trend in cosmetics. These light-weight mineral powders
combine the benefits of a loose powder with the full coverage of a liquid. Unlike the
traditional liquid and creme foundations, mineral foundation makeup feels soft, silky
and breathable on your skin - never heavy or mask-like. Mineral foundations do not
contain the oils, perfumes, dyes and preservatives found in liquids and cremes.
They do not use talc or other fillers that can be harmful to the skin and clog pores
like some conventional cosmetics.

It should be noted that not one of the large number of cosmetic competitors have
raised any queries over the marketing strategy used within this commercial. CAB
submits that this complaint should not be upheld.”
                                           4                                    09/080




Deliberation

The Complaints Board read all the correspondence relevant to the complaint and
viewed the television advertisement. It noted that the Complainant was of the view
that the advertisement referred unfairly to competitors’ products.

The Chairman directed the Complaints Board to consider the advertisement with
reference to Basic Principle 4 and Rules 2 and 6 of the Code of Ethics, as well as
Guideline (a) of the Code for Comparative Advertising. Accordingly the task before
the Complaints Board was to consider whether the advertisement was prepared with
a due sense of social responsibility, whether or not it was likely to deceive or
mislead the consumer and whether or not it played on fear. Additionally, the
Complaints Board was required to consider whether or not the advertisement
discredited, disparaged or attacked competitors, competing products, or services,
either directly or by implication.

Turning to the advertisement the Complaints Board noted where it said “…Do you
even know what’s in your foundation? Go on, take a look, Chances are you’ll find a
toxic chemical cocktail that may be damaging your skin.” The Complaints Board was
of the view that the phrase “toxic chemical cocktail” was very strong and emotive. It
also noted that the use of the phrase “chances are” implied to viewers that the
majority of make up wearers would be affected. The Complaints Board was of the
view that by referring to competitors’ products as a “toxic chemical cocktail”, the
advertisement directly disparaged these competitors, through implying that their
products were of a poor quality. Accordingly, it said that the advertisement was in
breach of Guideline (a) of the Code for Comparative Advertising.

The Complaints Board was also of the view that to refer to a make up product as a
“toxic chemical cocktail”, which it said consumers could understand to mean
poisonous, and not suitable for use, was misleading by exaggeration. Accordingly
the Complaints Board also said that the advertisement was in breach of Rule 2 of
the Code of Ethics.

A majority of the Complaints Board was also of the view that the advertisement
played on the fear of the consumers through the use of its strong and emotive
language. Accordingly, it said it was in breach of Rule 6 of the Code of Ethics. It was
also of the view that the advertisement had not been prepared with a due sense of
social responsibility to consumers, and accordingly said it was also in breach of
Basic Principle 4 of the Code of Ethics.

A minority of the Complaints Board disagreed, and said that the phrase “toxic
chemical cocktail” was tempered by the rest of the advertisement. It said that, in this
instance, the advertisement did not reach the threshold to breach Rule 6 of the
Code of Ethics. It also said that the advertisement had been prepared with a due
sense of social responsibility to consumers and to society, and accordingly was not
in breach of Basic Principle 4 of the Code of Ethics.

In accordance with the majority view, the Complaints Board ruled to uphold the
complaint.

Decision: Complaint Upheld
                                           5                                    09/080




                                      DECISION

                                 Chairman’s Ruling

                                    22 June 2009

Complaint 09/080

Appeal 09/024

                      Complainant: A. McKay
                      Advertisement: Brand Developers – Thin Lizzy
                      Applicant: Brand Developers – Thin Lizzy


Complaint: The television for advertisement for the Thin Lizzy mineral foundation
(Key No. BD/120/TLMT2) contained a voice-over that began “Is your foundation
causing you problems? Can’t show your face…Never enough coverage…feels
heavy and unnatural on your skin? Do you even know what’s in your foundation? Go
on, take a look, chances are you’ll find a toxic chemical cocktail that may be
damaging your skin. ...”


Complainant, A. McKay, said:

“During the advert for this product an insinuation was made that most competitors'
products were "toxic". To make a claim that other similar products are actually 'toxic'
appears to me to be misleading and unfairly maligns the competition. It certainly
sounded like slander to me (an average member of the public).”


The Chairman ruled that the following provisions were relevant:

Code of Ethics

       Basic Principle 4 - All advertisements should be prepared with a due sense
       of social responsibility to consumers and to society.

       Rule 2: Truthful Presentation - Advertisements should not contain any
       statement or visual presentation or create an overall impression which directly
       or by implication, omission, ambiguity or exaggerated claim is misleading or
       deceptive, is likely to deceive or mislead the consumer, makes false and
       misleading representation, abuses the trust of the consumer or exploits
       his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as
       such, is not considered to be misleading).

       Rule 6: Fear - Advertisements should not exploit the superstitious, nor
       without justifiable reason, play on fear.

Code for Comparative Advertising
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       Guideline (a) - Comparative advertising should be factual and informative
       and should offer a product or service on its positive merits. The intent and
       connotation of the advertisement should be to inform and not to discredit,
       disparage or attack competitors, competing products or services directly or by
       implication


The Complaints Board ruled to uphold the complaint at its meeting on 12 May
2009.


Application for Appeal

The Applicant, Brand Developers, said:

“The following is the formal appeal against the ASA decision with regard to the above
complaint.
The complaint was based on opinion - and an uninformed subjective opinion at that.
The ASCB written decision does not reflect, acknowledge or rebut any of the key
points raised by Brand Developers or CAB. This appeal is based on natural justice
and new information now available.
Both Brand Developers and CAB raised the point that this complaint needed to be
considered against the cosmetic market, both nationally and internationally.
Advertising in this sector in print and TV is beset by spurious claims, hyperbole,
statements that verge on therapeutic claims and shonky surveys. For example
L'Oreal claim "90% women say they have noticed their skin feels younger" - in small
print (based on a client survey of 57). In this environment of outlandish exaggeration
carefully qualified in the small print and sheer puffery implied as facts, Thin Lizzy has
made a statement based on facts.
Women users of cosmetic products generally accept the veil of puffery that hangs
over the entire market sector. They know the claims should be treated with cynicism
but still want to believe at least some of those implied miracles are at their fingertips.
Thin Lizzy is not a major name on the world scene, but in New Zealand they have
become the 3rd largest brand in Pharmacies, and that does not include their direct
marketing sales. This does not sit well with those major international labels that are
not only competitive but also highly litigious. Revlon did in fact come knocking, but
their only concern was a shot of a bottle that was similar to theirs. After discussion
with their New York lawyers they let the issue lie. This international competitive
scrutiny seems not to have been appreciated by the ASCB; instead they have
accepted the opinion of a viewer who is not even a consumer.
The overall decision will be discussed shortly but a phrase needs first to be
challenged. The phrase "chances are", was defined by the ASCB as "that the
majority of users would be affected". Chances are I will win the trifecta at Trentham
tomorrow; chance are I'll win Lotto on Saturday; and chances are my skin will react to
my makeup next week. "Chances are means maybe, it is possible, but it is
not odds on, or a near certainty. It is possible - not probable as the ASCB assert. The
other interpretation we would challenge is that Thin Lizzy was implying "poor quality"
in other brands. No such suggestion was made or intended. In fact many products
are loaded with ingredients to achieve spectacular results, but some of those
ingredients carry a risk factor to the consumer.
A primary key to the original Brand Developer's response was the point Thin Lizzy
was trying to make regarding reading the label, knowing and understanding the
                                           7                                    09/080




ingredients, and knowing and understanding one's own skin, sensitivities and
allergies. The response gave only a representational range of other products'
ingredients. This was based on our knowledge of the industry in general terms, but
then further reinforced as we started our own analysis of some of the major products
where ingredients could be identified. This showed an alarming number of chemicals
with varying degrees of toxicity. Not all brands had all the compounds or chemicals,
but they all included a range of them. This was ample to rebut the complaints
against:
Code of Ethics Rule 2: Truthful Presentation; and
Rule 6: Fear. How could factual be fearful?
Upon the unexpected uphold of the complaint we have delved further into the issue
of toxic chemicals in cosmetics and have discovered there is in the USA an
environmental watchdog group Environmental Working Group, established in 1993.(
See enclosed booklet) This EWG has focused on
             Toxic chemicals and human health

            Agriculture policy

            Natural resources

Under Human Health their current project is Skin Deep - a cosmetics safety database
which pairs ingredients in over 25,000 products against 50 toxicity and regulatory
databases. The database is intended as a resource for consumers, who can search
by ingredient or product when choosing personal care products.
This is the very idea that Brand Developers had been trying to suggest in their
advertisement, but on a very individual basis. Here, a Consumer Organization has
collated and cross -referenced validated data from regulatory and reputable sources.
This information is not readily available yet to New Zealand consumers, but the
brands available in New Zealand are almost all covered in the EWG survey. Similar
brands to Thin Lizzy score an average of 2 to 3 out of 10 (low hazard rating). The
others rate from 7/10 (not recommended) to 10/10 (high risk).
Rather than just summarise some of the data we ask that the Board read the actual
extracts we have provided
The findings of the EWG are either ridiculed or ignored by the industry giants of
cosmetics but the EWG information is based on legitimate data from independent
sources. It is an influential and authoritative body.
In our original submission we asked the question: If this was a "comparative
advertisement" how it is no competitors have complained. From this EWG data it
would appear the competition would have to reveal the ingredients of their own
products to mount a complaint against Thin Lizzy. But they would be unlikely to want
to have their toxicity levels debated in a public forum like the ASCB, hence the roar of
silence from them.

Brand Developers had not intended the TVC as a comparison against competing
brands rather a generalized wake-up call to consumers to check the actual
ingredients of their cosmetics, but if, as the ASA has deemed, it is a Comparative ad
then the EWG data surely vindicates it way beyond what our own research has done.
…”.

Apart from being factual and informative, the Thin Lizzy TVC does not meet any of
the criteria of Comparative Advertising.
              It does not identify a competing product or service
                                            8                                      09/080




            It does not make any comparison

            It does not mislead a consumer about any other product.

The complaint should not have been considered under this code.
The decision against the term "toxic chemical cocktail" was clearly not unanimous,
but given the existing puffery and hyperbole present in cosmetic advertising
generally, and the additional support we are now able to provide through the EWG
data, this term must now seesaw between hyperbole and factual . It certainly is not
untruthful, and there is ample justification if it does arouse any feeling of fear or
apprehension.
On this basis Rule 2 and Rule 4 are met and therefore so is the requirement for due
sense of social responsibility to consumers and society.
Although we accept the ASA and the ASCB as effective and necessary functions in
the advertising system, we do feel in this instance, a majority of them were led astray
by a complaint from a viewer but not a consumer; in their logic by a misinterpretation
of a phrase; and a limited review of this market sector overall. With the additional
information and supporting data we have now been able to provide we trust the
Appeals Board will uphold this appeal. We also believe that if the complainant is
supplied with the independent data from EWG he would readily accept the TVC as
valid.”


The Chairman perused the application for appeal. She referred to the five grounds
on which an appeal was able to proceed. These were listed at Clause 6(a) of the
Second Schedule of the Advertising Standards Complaints Board Complaints
Procedures and were as follows:

   (i)     The proper procedures have not been followed.

   (ii)    There is new evidence of sufficient substance to affect the decision.

   (iii)   Evidence provided to the Complaints Board has been misinterpreted to
           the extent that it has affected the decision.

   (iv)    The decision is against the weight of evidence.

   (v)     It is in the interests of natural justice that the matter be reheard.


The Chairman noted that the application received was “based on natural justice and
new information now available”.

The Chairman addressed the Application where it said:

“Apart from being factual and informative, the Thin Lizzy TVC does not meet any of
the criteria of Comparative Advertising.
              It does not identify a competing product or service

            It does not make any comparison
                                           9                                     09/080




             It does not mislead a consumer about any other product.”

In response she turned to Decision 06/119 AWAP 06/004 (Dulux New Zealand
Limited) where the Panel had said:

“The Panel acknowledged that in the current advertisement there was no direct
comparison with any other product or industry participant. However it was apparent
to the Panel that the message received by the consumer implied that Dulux paint
was preferred therefore superior to all other products and brands on the market and
this included the complainant’s brand. The Comparative Code was therefore
deemed by the Panel to be applicable to this complaint.”

Looking at the advertisement as a whole the Chairman noted that it contained
questions and phrases such as:

“Is your foundation causing you problems? … Do you even know what’s in your
foundation? Go on, take a look, chances are you’ll find a toxic chemical cocktail that
may be damaging your skin. Well good news girls. Thin Lizzy has developed a
Mineral foundation that is actually good for your skin. … But the real secret is what it
doesn’t have in it. There are no harsh chemicals or preservatives. … I wouldn’t trust
anything else! … So don’t let your foundation be the cause of your skin problems.
… So if this isn’t the best mineral foundation you’ve ever tried simply send it back,
we’ll even pay the return postage….”

This, the Chairman said clearly referred to the merits of Thin Lizzy Mineral
foundation and implied that there was a chance that other foundation products in the
market may contain “a toxic chemical cocktail” that “may be damaging your skin”,
and also may contain “harsh chemicals and preservatives”. The Chairman said the
reference to other foundation products on the market was exacerbated by the
wording:

“I wouldn’t trust anything else! … So don’t let your foundation be the cause of your
skin problems. … So if this isn’t the best mineral foundation you’ve ever tried…”.

Thereby, the Chairman said the advertisement was clearly a comparative
advertisement for the purposes of the Advertising Codes, and that the Complaints
Board had ruled correctly to consider the complaint under Guideline (a) of that code.

Referring to the issue raised in the appeal application concerning the right of the
Complainant A. McKay to raise a complaint about what appeared to them to be a
misleading advertisement that “unfairly maligns the competition”, the Chairman said
there was no requirement for a complainant to be a consumer, and any member of
the public had the right to make a written complaint about an advertisement. The
Chairman clarified that it was the Complaints Board’s role to take the point of view of
the consumer in addressing the issues raised in complaint and the content of the
advertisement.

Accordingly, the application where it raised the issue that the Decision was made in
respect to “a complaint from a viewer but not a consumer” did not raise any issue as
to whether or not the matter should have been considered by the Complaints
Board’s
                                         10                                    09/080




Turning to the “Human Health” database material “Skin Deep” compiled by the
Environmental Working Group established in the USA in 1993, the Chairman said as
this material had been available at the time the Complaints Board originally
considered the Complaint, it could not now be presented as “new material”.

Having made the above observations, the Chairman said that the appeal application
did not meet any of the grounds for appeal as set out at Clause 6(a) of the Second
Schedule of the Advertising Standards Complaints Board Complaints Procedures.

Accordingly, the Chairman ruled that the Application for Appeal be declined.


Chairman’s Ruling: Application for Appeal Declined

				
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