Pursuant to the Cosmetic Regulation, the definition of a cosmetic product is "all preparations or substances prepared to be applied to different external parts of the human body; epidermis, nails, hairs, hair, lips, and external genital organs, or teeth, and oral mucosa; and its sole or primary purpose are to clean, scent, change appearance of, protect these parts, keep them in good condition or fix body odors".
In addition to this definition, the Cosmetic Regulation also determines the criteria regarding the quality and safety of cosmetic products. A cosmetic product placed on the market should not cause any problems and should be safe for human health, if it is applied under normal conditions along with the conditions provided by the manufacturer or applied per the product presentation, labeling, explanations, or conditions of use recommended by taking into consideration the information provided by the manufacturer.
Ads related to cosmetic products are not prohibited under legislation however various restrictions are regulated. Since cosmetic products are directly related to human health and body, cosmetic product ads should be subject to restrictions. In practice, ads for cosmetic products include exaggerated promises to sell the products, attract attention and influence the purchasing decision of consumers. Therefore, the specific rules are regulated related to cosmetic ads.
Cosmetic product ads should be made primarily in accordance with the provisions that regulate the ads/promotions of any product such as the Regulation on Commercial Advertisement and Unfair Commercial Practices, Law on the Protection of Consumer with numbered 6502. Additionally, cosmetic ads should also be in compliance with the regulations which are specially regulated for the cosmetic products ads/promotions such as Cosmetic Law numbered 5324, Cosmetic Regulation, Regulation on Health Claim and Health Claims of the Products Offered for Sale (“Health Claim Regulation”), Guideline for Cosmetic Claims, and Guideline for Promotional Activities of Cosmetic Products.
Within the scope of these regulations, in cosmetic products ads/promotions, the features of cosmetic products should be stated clearly and in a way that the consumer can easily understand. The features and/or claims stated in the ads must be true, provable, and accurately express the features of the product.
The features of the cosmetic product stated and claimed in the ads must comply with the cosmetic product definition set out above. Expressions, images, and explanations in the ads should not draw attention to or should not imply any feature that does not fall under the scope of the cosmetic product definition.
One of the problems frequently encountered in practice is the use of expressions that exceed the cosmetic product definition or that is accepted as health claim. Under the Health Claim Regulation, the health claim is defined as “all claims that state, assert or imply that it is directly or indirectly beneficial to human health or effective, protects, treats against diseases or their symptoms”. Therefore, it is important to pay attention not to refer to features that can be considered as a health claim. Please find some of the expressions that exceed the definition of cosmetic product or are considered as health claim below:
Treats/relieves/heal heat rash,
Increases the skin immunity,
Relieves gum ailments,
Prevents baldness, stops hair loss,
Helps with the weight loss,
Antibacterial, antioxidant,
Destroys the cracks formed during pregnancy.
As with many decisions given by the Board of Advertisement (“Board”), in its decision with the File No. 2021/1885, Meeting No. 315 and dated 09.11.2021, the Board stated that, “all cosmetic products that are subject to the cosmetic legislation, should be products that are applied to the external parts of the human body and whose effects are temporary, and within this context, expressions regarding treatment and indications in the promotions subject to the examination should not exceed the cosmetic product definition specified in the relevant legislation and should not be misleading” and also imposed a fine of stopping the ads related to ads that exceed the cosmetic product definition and are misleading.
Health Claim Regulation contains expressions that should not be used in cosmetic products ads or promotions. Expressions that should not be used in cosmetic product ads are;
Expressions such as treating or preventing any disease, diagnosing a disease, or diagnosing or fixing a physiological function,
Expressions that claim to renew, fix, or change physiological functions as a result of pharmacological, immunological, or metabolic effects, and
Expressions refer to the effect of the human medicinal product.
In many Board’s decisions, there is a statement that “If the products in question can prove the expressions in the ads, it should not be considered to fall under the scope of “cosmetic product”, and it should be licensed within the scope of “human medicinal product” or “medicine”, and ads related to products that are evaluated as “human medicinal product” or a “medicine” do not comply with the legislation. Therefore, in any case, it is evaluated that such ads regarding the product in question, constitute a violation of the current legislation” (Board Decision, F. 2022/1156, M. No. 326, D. 11.10.2022).
The cosmetic product features that can be referred to in ads should be the features such as cleaning, scenting, changing the appearance, protecting, and keeping in a good condition. With the strict supervision of the Board in this regard, it is aimed to determine the features that can be referred to in the cosmetic product ads and also prevent the marketing of the features such as therapeutic or medicine in ads.
In addition, according to the Guideline for Cosmetic Claims, expressions regarding the performance or functionality of a cosmetic product should not go beyond the available supporting evidence. Also, cosmetic products with the same features should not imply to be superior to others with the claims such as “unique, peerless, the best, the most effective”.
Another problem that is often encountered in cosmetic product ads is the use of surveys to prove the accuracy of the claims. The data related to the survey results can be used in ads. However, the survey should be conducted by an independent organization, and the questions and answers should be clear and understandable. If an expression based on survey results is used in ads, the details about the survey should be stated separately in the ads subtitle. Nevertheless, the expression to be used in the ads must comply with the rules set out in the general advertisement legislation and the survey result should not be reflected differently.
Authors: Hatice Ekici Tağa, Öykü Su Sabancı
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