NAD Refers Advertising Claims for Cross Brands ‘Sea & Ski’ Sun Care Products to FTC, FDA for Further Review

New York, NY – Sept. 17, 2018 – The National Advertising Division has referred advertising claims made by Cross Brands Manufacturing, LLC, for the company’s Sea & Ski brand sun care products, to the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) after the company declined to state whether it would comply with NAD’s recommendations to discontinue certain advertising claims.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

The claims at issue were challenged by Bayer HealthCare, LLC, manufacturer of competing sun care products, and included:

• Sea and Ski Beyond UV with IR-GUARD infrared protection
• Sea & Ski Beyond UV Kids Sunscreen Spray Mist SPF 70 provides Broad Spectrum UVA/UVB Plus INFRARED sunscreen protection for your skin from free radical damage caused by long term exposure to IR-A waves.
• The best protection against skin cancer is Sea & Ski Beyond UV.
• Applying Sea & Ski Beyond UV provides 4x more protection than other suncare products.
• Sea & Ski provides 4X more protection by combining Broad Protection UVA/UVB with IR-GUARD.

Both parties in this matter market lines of sunscreen products that provide broad-spectrum protection against ultra-violet A and ultra-violet B rays.  The advertiser also claims that its sunscreens provide consumers with protection from solar infrared radiation. “Given the regulatory environment in which the sun care industry exists,” NAD said in its decision, “NAD appreciates how important it can be for advertisers to develop and promote technological advances associated with its products. However, when doing so, advertisers must nonetheless ensure that their advertising claims about those innovations and their associated benefits are truthful, accurate and not misleading.”

The challenger contended that there is no reliable scientific evidence that the advertiser’s products provide the promoted benefits and that it is not clear that infrared solar radiation is harmful or can be protected against by sunscreen. The advertiser stated that it has valid in vitro testing that shows its products do block infrared radiation and that there is scientific literature discussing the dangers presented by infrared solar rays.

To support its claims of infrared protection, the advertiser provided some information about its testing to NAD, including a sample report from the third-party laboratory that describes the laboratory procedures used to test the Sea & Ski suncare products, calibration reports describing the equipment used in the test and selected pages of one infrared protection test report showing the end results of that test.

Following its review, NAD determined that the advertiser’s evidence was insufficient to substantiate the challenged “infrared protection” claims. As a preliminary matter, NAD noted that the advertiser provided very little information regarding its products’ infrared protection results. The results provided were from a single product test and did not include any of the analysis or graphs that, based on the sample report, were likely part of the original document. Generally, incomplete study information, whether in the form of abstracts, informal summaries, or, in this case, highly redacted information, do not impart enough information to constitute competent and reliable scientific evidence.

It is also unclear to what extent the results translate to consumer usage of the products for infrared radiation protection. There is no evidence in the record that the submitted in vitro test method provides any reliable information about how a tested product would perform when applied onto and absorbed into the skin. NAD questioned whether the results data provided by the advertiser reflected consumer relevant infrared solar radiation protection.

NAD determined that the advertiser has not supported its claims that its sunscreens provide consumers with “IR GUARD infrared protection” or provide “INFRARED sunscreen protection for your skin from free radical damage caused by long term exposure to IR-A waves.” NAD recommended that these claims be discontinued.

NAD noted that the parties also disagreed about whether solar infrared radiation was harmful for humans such that protection from those rays was a benefit for consumers. Because the advertiser’s evidence did not support its claims that its products provide consumer relevant screening of infrared solar rays, NAD did not reach the issue of whether protection from infrared rays is, in fact, a health benefit or that infrared solar radiation protection helps prevent “free radical damage caused by long term exposure to IR-A waves.”

NAD recommended that the advertiser discontinue its claims that Sea & Ski sunscreens provide “IR GUARD infrared protection” and “INFRARED sunscreen protection for your skin from free radical damage caused by long term exposure to IR-A waves.”

During the course of the NAD proceeding, the advertiser said it would voluntarily discontinue the claims “the best protection against skin cancer,” “provides 4X more protection than other suncare products,” and “provides 4x more protection by combining Broad Protection UVA/UVB with IR-GUARD.” The voluntarily discontinued claims will be treated, for compliance purposes, as though NAD recommended their discontinuance and the advertiser agreed to comply.

Finally, NAD determined that that the statement “Beyond UV” – absent the context of the infrared protection claims – amounts to a supported statement generally referencing the wide-ranging benefits of broad spectrum UV sunscreen.

The procedures governing advertising industry self-regulation require advertisers to state whether they intend to comply with the terms of an NAD decision or whether they intend to appeal as part of an “advertiser’s statement.”  The advertiser in this case did not provide NAD with an advertiser’s statement. As a result, the advertising claims at issue have been referred to the FTC and FDA  for further review.

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.