NAD Provides Guidance on Clean” Claims

In a recent decision, NAD notes that clean” claims are ubiquitous in the beauty industry.” Despite that, the term doesn’t have a clear definition and reasonable minds can disagree over exactly what it means. That creates a challenge for advertisers who are generally required to be able to substantiate all reasonable interpretations of their claims. Although NAD doesn’t take a position on what clean” should mean, the decision provides some helpful guidance for advertisers who want to use the term.

NAD notes that context in which clean” claims are made dictates their meaning and, therefore, that advertisers should explain exactly what they mean. In a nod to challenges outside of the self-regulatory context, NAD warns that this is especially important in light of numerous class action lawsuits filed against beauty companies for touting their clean’ products” which contain ingredients that some may not consider clean. (Click here for an example of one of those suits.)

In this case, Amyris Clean Beauty qualified its clean ingredients and clean formulas” claim by adding the following explanation in the same sentence: we ban over 2,000 ingredients that are known to be toxic to you and the environment.” In response to NAD’s inquiry, Amyris pointed to lists of substances that various regulatory bodies, countries, and trade associations have deemed to be toxic to human health or the environment and explained that the company doesn’t use those substances in its products.

Based on NAD’s decision, it seems like defining what clean” means by clearly explaining what ingredients aren’t included in a product may be a good strategy. However, that’s only part of the strategy. Leaning on the FTC’s Green Guides, NAD notes that a truthful claim that a product, package, or service is free of, or does not contain or use, a substance may nevertheless be deceptive if the substance has not been associated with the product category.”

In this case, NAD found that it wasn’t clear whether the over 2,000 ingredients Amyris doesn’t use are typically associated with cosmetics. Thus, NAD recommended that the company modify the claim to reflect the ingredients banned that are typically used in cosmetics products.” Presumably, that means that Amyris can continue to make the clean ingredients and clean formulas” as long as it updates the disclosure, as recommended.

This may be a good model for companies who are faced with NAD challenges, but we’ll have to wait and see whether plaintiffs’ attorneys and courts will feel the same way. In the meantime, tomorrow we’ll look at lessons that this decision may hold for sustainability claims.