Why can’t I …?

In this month’s column we take a look at the challenges faced with the never ending question of comparative claims making…

If I had 5 Euros for every time a customer said to me “Theresa, our competitor is making this claim, why can’t we?”, then I would be writing this column from some luxury island pad with never ending sunshine, beautiful views, and a lifetimes supply of Kase und Jalapeño maiswurmchen! Sadly though, this is not to be the case, as I write out this column from a hot cloudy Hamburg.

So why are brands, and even fellow techs from R&D, still asking this question that keeps claims non-compliance well and truly front of stage. Let’s try to explain in simple terms

1. The Issues

• Your competitors claim may be incorrect – the chances that your competitors claim may also be non-compliant is always up for debate. Do you want to add to the confusion?
• Your competitor may not have been “caught” yet by the Authorities – if the product being sold is internet only, the jungle still contains enough camouflage and saturation by so many products, that it is difficult to monitor effectively.
• Your formulation is not the same as your competitors – logic dictates that while your formulation may be “similar” to your competitors, it differs in one respect – you have not seen their PIF, so how would you know what their formulation is, unless a crime had been committed either by you or even them sharing confidential information. You would only have had a labelled INCI list to draw from. The ingredient suppliers maybe different, raising the real possibility of different ingredient “activity/efficacy”, and there maybe issues with product stability, etc. There are other points here to relating to so-called “free-from” claims. Most “freefrom” claims are actually prohibited, since the claim either refers to banned ingredients anyway, and furthermore, the claim denigrates permitted ingredients too! The classic example being “freefrom parabens”!
• If your competitors claim is compliant, they may well have had the good financial resources to back it up with solid evidence – have you? Far to often there is an enormous chasm between what the brand wants to claim and the financial resources in which to achieve this. This huge difference between reality and expectation is something that brands need to understand. Sadly, even if they do, they would rather ignore the consequences, because they know the limitations on the regulatory authorities, e.g., the UK’s ASA has no authority to impose fines or jail sentences.
• Why do you want to be a “me-too” brand? Why is it so important to make this claim in the first place? Are your brands ambitions “low ceiling”? Do you understand you target market well enough? What is your brand trying to communicate to your consumer? Even if you are going after market share of your competitor, having a cheaper product with the same laims but with no robust evidence to support it, may back-fire.

“Assessment of the acceptability of a claim shall be based on the
weight of evidence of all studies, data and information available
depending on the nature of the claim and the prevailing
general knowledge of the end users.” EU 655/2013

2. Is there a solution(s)?

There is always a solution to every problem if you think it out hard enough and have a bit of faith. Yet, the uphill struggle we face against this never question of “why can’t I make the same claim as this other brand?”, is challenging.

The first solution is obviously to comply with the regulation requirements (whatever country you are making and selling into). This means being realistic about your product expectations and focus on the value of your product, not your competitors. It also means educating yourselves properly about what it takes to put ac cosmetic on the market, including the sciences (especially for marketing) and consumer. It means not being educated by the whims of influencers and social media wannabes.

We could champion for changes at the respective nations ASA’s to start imposing fines and naming and shaming beyond the ASA website. The ASAs are reliant on whistleblowers and general com- plaints, but the majority of those who would like to raise a complaint or query, are reluctant to do so and prefer to remain silent (“let sleeping dogs lie attitude”).

The regulations are still too “wooly” and different interpretations exist. Everyone knows about the famous nuances of the english language, yet we are a global industry with many languages, all with their own meanings. Tightening up the language and being more precise in the requirements (which yes means spelling out exactly what wording can’t be used), may help. The rough ride is not over…

As I have mentioned over the years, in previous articles and posts, it is timely to consider disrupting the industry and completely change the NPD pathway – it is outdated and seemingly not fit for purpose. This idea seems to be gaining traction, but we shall see…

Those financing cosmetic brands should challenge their respective clients into sharing how they will substantiate their claims as well as challenge them on why they want to make certain claims. It could be used as a condition of investment. The downside is that a large number of investors are only in the game for a quick ROI!

“Truth is the conformity of the mind to reality”
Thomas Aquinas 1225 – 1274