In this month’s column I attempt to describe an observation that’s more than just hair loss – the void between the regulators and consumer insights is a big one!
The Holidays are well and truly over. It’s been raining as if St. Swithin’s Day is everyday, yet I am buzzing with delight at having so early on in the year a most insightful and motivating discussion with a marketing colleague! Such discussions are rare, more often than not with marketing taking pot-shots at regulatory requirements and still finishing their sentences with the now ancient phrase “… if our competitors are claiming this, then why can’t we …?” I rest my case with rolling eyes.
However this discussion focused not on their competition per se, but on consumer behaviour that encourages marketing to make certain claims. This is important because it raises three key points: educating the consumer with misinformation; do the regulators really understand (even conduct) consumer insight investigations of their own; and how or if consumer behaviour does/will actually influence the regulations?
The discussion I had – as you have already guessed – centred on the topic of cosmetics for the stimulation of hair growth. In fact my colleague was not enamoured with the term “helps reduce hair loss”, and did raise the point that his competitors were making (basically) non-compliant claims. He understood that such “cosmetics” were classed as “borderline” under the EU regulations, and were also considered on a case-by-case basis should issues arise. “But business is business!” I hear.
We discussed various competitor websites, and also case studies for so-called “hair growth” cosmetic products, several reported by the UK’s ASA 1, and also ones here in Germany, with one in particular going to the European Court 2. Robust evidence was clearly a running theme throughout these cases, and the so-called “magic 30 volunteers” that we have all become used to across the industry for whatever cosmetic, is definitely “not magic” when it comes to “borderline” products. It might be fine for specific clinical measurements such as TrichoScan, but unless there is a healthy number of volunteers (e.g., 100+) actually using and reporting on the product efficacy, then the data could, at least overall, be deemed insufficient. Furthermore, when the strength of the claim rests on not-so-robust data, and the fact that such borderline products are taken on a case-by-case basis, the ensuing outcome of the investigators may seem like a game of Chance!
A very valid point raised in the discussion concerned “where does the consumer fit into all this?” My colleague pointed out that – at least from the investigations he had made – was that when consumers are looking for such products searching Google, the term they put into the search engine is “hair growth product” and not “hair loss/reduces hair loss”. Yet, as cosmeticians we are not allowed to claim “promotes hair growth,” since this is deemed a “medical” term – at least as far as the MHRA and CAP are concerned. Furthermore, the ASA/CAP 3 website indicates that: “claims that a product could slow down or reduce hair loss or promote or strengthen existing hair growth, are unlikely to be considered medicinal claims. Irrespective, marketers should hold robust evidence to prove their claims”. In addition, they have a big disclaimer at the beginning of that webpage too. Confusing it is, since the word (I underlined) “unlikely”, means that the claim could still be deemed non-compliant. Just because the claim is “unlikely” to be considered medical, it does not mean that it isn’t. Here in the EU, claims for hair growth are not accepted 4, yet again it’s all on a case-by-case basis.
So we are left with a confusing scenario – consumers are searching for cosmetic hair growth products. On the internet they search far and wide with many overt claims coming from US web- sites (though now we have the new FDA cosmetic legislation). They do not want drug products, since these they say ruins their sex lives, or gives them a heart attack (ref: Finasteride and Mi- noxidil). They want safe cosmetic ingredients. Yet legally we can only give them products that claim, “helps reduce hair loss” (or words to that effect). Added to this confusion, if a cometic product has robust evidence that supports “helps reduce hair loss”, and that hair growth is also observed, then the products position in the marketplace, may or may not be deemed compliant, and that it maybe perhaps, be unlikely that the claims might be unlikely, or likely accepted.
Still confused? Consumer and marketing education against misinformation is vital, and also explaining to them (and us) in a pragmatic way the nuances and scenarios of “borderline” products. Otherwise we will end up with more legislation and ultimately a disappointed consumer. Better consumer insight studies surrounding how consumer search for products using product claim search-terms are also needed. The lawyers, regulators, and consumers need to come together on this one – a tall order indeed!
As I wrote in my book on cosmetic claims: “I know that you believe you understand what you think I said, but I’m not sure you realise that what you heard is not what I meant”!
- https://curia.europa.eu/juris/document/document.jsf?text=&docid=26 7127&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1& cid=47884%23 ; and also see, https://www.wettbewerbszentrale.de/de/ branchen/kosmetik/aktuelles/
- https://single-market-economy.ec.europa.eu/sectors/cosmetics/cosmetic- products-specific-topics/borderline-products_en