If you've been waiting for a substantive legal discussion that works in a reference to the B-52s’ surreal 1980 hit “Rock Lobster,” today’s your lucky day. The FTC announced a settlement with DERMAdoctor, Inc., and owner Audrey Kunin, M.D., for false and deceptive claims for Photodynamic Therapy anti-aging lotions and a body slimming lotion called Shrinking Beauty, advertised to “simulate a lobster’s ability to shrink its body.” (See? We weren’t kidding.)
The defendants sold the line at Nordstrom, Sephora, and Ulta. Dr. Kunin appeared on QVC to market them, too. What was the pitch? Photodynamic Therapy Sunlight-Activated Laser Lotion, for example, which went for $85, was supposed to capture ultraviolet light and transform it into visible red light that has purported anti-aging effects. The defendants claimed the results were equivalent to what people would get from a laser or intense pulsed light treatment at a doctor’s office.
A related product, Photodynamic Therapy Liquid Red Light Eye Lift Lotion, was pitched as “the ideal nonsurgical alternative to undergoing blepharoplasty (aka eye lift).” The company claimed the product was clinically proven to lift and tighten sagging eyelids by 67%, reduce sagging skin around the eyes in 65% of users, and produce firmer skin around the eyes in 80% of users.
What did the FTC think of the purported proof offered by DERMAdoctor? You’ll want to read the complaint for details on why the agency found the defendants’ science underwhelming, but one concern was that the studies didn’t adequately test the foundational claim that the products could transform UV light into visible red light with purported anti-aging effects. Furthermore, a study on the eye product didn’t report the effects of the ingredient on sagging eyelids or sagging or firming skin around the eyes. Another study – designed and conducted by DERMAdoctor employees who didn’t have relevant scientific training or expertise – included just four test subjects. Two of them said in a questionnaire that their skin was firmer after eight weeks, but didn’t say anything about other specific claims made in the ad.
Now for Shrinking Beauty, a “firming, sculpting & toning lotion with lobster weight loss inspired technology.” People who bought Shrinking Beauty were promised “sleek contoured and dimple free” skin just by slathering on the $58 lotion. “Learn from the lobster,” the ads claimed. “This sea creature knows exactly how to shrink a size effortlessly without going on a diet. Our slimming and toning formula mirrors the ecdysteroid hormone lobsters produce to get skinny and wiggle free of their shells.” The defendants claimed the product was “clinically proven to reduce measurements up to 1 inch in 2 weeks.”
One study DERMAdoctor relied on was conducted by an ingredient supplier. It was placebo-controlled and used ultrasound to measure the thickness of fat tissue in thighs before and after using Shrinking Beauty. Too bad that after two full months, none of the 27 subjects had the one-inch decrease in thigh circumference the ads promised in just two weeks.
A second, uncontrolled study of five women was conducted by untrained DERMAdoctor employees. The FTC’s complaint details significant inconsistencies in how they measured four of the subjects and calculated the purported results. A fifth subject just measured herself at home.
The complaint alleges that efficacy claims for the Photodynamic Therapy lotions and Shrinking Beauty are false or unsubstantiated. It also challenges establishment claims for the Eye Lift Lotion and Shrinking Beauty. To settle the case, the defendants have agreed to have at least two well-controlled human clinical trials to support claims that a product causes weight loss or reduces body size. They’ll need competent and reliable scientific evidence to support a host of other claims. The $843,996 judgment will be partially suspended based on a review of the defendants’ financials and includes an avalanche clause that will kick in if they’ve materially misstated their assets. They’ll also have to contact distributors about the FTC’s lawsuit.
What’s the message for other companies?
First, subjective beauty claims for cosmetics are usually outside the scope of the FTC Act. But once companies cite scientific principles to support the mechanism by which their products supposedly work, they’ve upped the substantiation ante.
Second, according to the FTC’s “Gut Check” guidance for media outlets, claims that people can lose substantial weight or inches by rubbing something into the skin are flat-out false. Of course, the universe of deceptive weight loss and slimming representations extends far beyond the seven Gut Check claims, but that should certainly give marketers a reason to evaluate their substantiation carefully. In “Rock Lobster,” the “boys and bikinis, girls and surfboards” kept their trim shape by “rocking, frugging, and twisting round the fire.” That’s a wiser course of action for consumers looking to slim down.
Third, we prefer our lobsters with melted butter and one of those bibs, please.