BBB National Programs Archive

Botopical, LLC Participates In ERSP Self-Regulatory Forum

New York, NY – April 1, 2005 – The Electronic Retailing Self-Regulation Program (“ERSP”), the electronic direct-response industry’s self-regulatory forum supervised by the National Advertising

Review Council (“NARC”), announced that direct response marketer Botopical, LLC (“Botopical”) has provided a reasonable basis for selected general performance claims communicated for its Botopical Skin Care System in a thirty- minute infomercial, and agreed to modify other product claims included in its advertisement. The truth and accuracy of the marketer’s claims came to the attention of ERSP through its on-going monitoring program.

In the inquiry, ERSP requested that the marketer provide substantiation for several core performance claims and quantified performance claims that were communicated in the 30-minute advertisement for the Botopical Skin Care System. The representative claims at issue included: “20- minute/Instant results claims   (i.e., “5 to 10 years younger in just 20 minutes.” and “turn back the clock in just 20 minutes.”); Comparative performance claims (i.e., “Works better than anything I have ever seen out there.” and “Are you thinking about Botox, collagen injections or plastic surgery? …. [Botopical is a] fabulous alternative.”); Quantified performance claims (i.e., “10 years younger in 10 weeks” and “Here’s the proof, individual studies have shown an unbelievable 68% reduction in deep lines and wrinkles in 6 weeks.”); and general performance claims: ( “My skin is tighter, firmer and healthier.” and “No side effects.”).

ERSP determined that the evidence provided by Botopical provided a reasonable basis for it core claims that consumers using the product will “see visible results in 20 minutes” and that the product has “no adverse side effects.” It was also concluded that the submitted testing  provided sufficient support for the claim that product use resulted in “Up to 68 % Reduction in Deep Lines and Wrinkles…” within a six month context but not in a  four week period as presented in the previous version of the infomercial. Lastly, while ERSP agreed that certain statements in the infomercial (i.e., “[Botopical can] take years off your face” and “I look twenty years younger.”)were statements of puffery, it was also concluded that, based upon the context in which other less subjective quantified “years younger” claims were presented (i.e., ”8 years younger in 8 weeks” and “5 years younger in 5 weeks.”), it would not be unreasonable for consumers to interpret the representations as claims of measurable product performance and, accordingly these claims should be modified to make it clear that these are only statements of opinion from the individual consumer.

In its acceptance of ERSP’s recommendations, the marketer stated that “Botopical, LLC is pleased that ERSP found that certain core efficacy claims for the Botopical 3 Step Anti-Wrinkle System to be … properly substantiated.  Further,… to the other “years younger claims” identified by ERSP as measurable performance claims… the factors upon which ERSP based its conclusion …were already modified by us in the subsequent version of the direct response advertisement …and, in accordance with the ERSP’s decision, we will review the advertising and modify any references to Botox which might be construed as a comparative performance claims.  Botopical, LLC is pleased to have participated in ERSP’s self- regulatory process.”