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Home Rulings UNILEVER / DOVE BABY BAR / JOHNSON & JOHNSON / 2018-7261F

UNILEVER / DOVE BABY BAR / JOHNSON & JOHNSON / 2018-7261F

Attorney Gerald Ramsden lodged a competitor complaint on behalf of Johnson & Johnson against advertising claims that appeared on Unilever’s Dove website at www.dove.com/za/baby/washing-and-bathing/baby-bar.html. 

The website states, inter alia:

"Gently care for your little one’s delicate skin with Baby Dove Baby Bar. With our ¼ moisturising cream for touchably soft skin, it’s gentler and more nourishing than ordinary baby soaps.”


COMPLAINT

The Complainant submitted, inter alia, that the claim "gentler and more nourishing than ordinary baby soaps” is an objective claim, and that the number of "ordinary baby soaps” against which the product is being compared is neither qualified nor limited in the claim. There is also no accompanying disclaimer to explain how many of those products are being compared to the Respondent’s product. The claim is thus a sweeping claim, and the hypothetical reasonable person will accordingly understand the claim to mean that the Dove product is "gentler and more nourishing” than all "ordinary baby soaps” available within the South African market, whether they be in bar form or liquid form. 

The Complainant submitted that it is aware of at least 30 baby soap products within the South African market that fall within the category of "ordinary baby soaps”, if that category is interpreted narrowly so as to include only "ordinary baby soaps” in bar form, and even more baby soap products if the category is interpreted wider so as to include "ordinary baby soaps” in liquid form. Having regard to the vast number of products in the South African market, it is extremely unlikely that the Dove product has been proven by the Respondent to be "gentler and more nourishing” than all of them.

The Complainant further submitted that the Respondent needs to prove the accuracy of two additional aspects of its claim, namely:

  • that the Dove product does in fact contain "1/4 moisturising cream” (which is not evident from the product’s ingredient list), and that this results in the product being "gentler and more nourishing” than all "ordinary baby soaps”; and
  • that the Dove product’s use does in fact provide a nourishing benefit to the skin (given that the product is a rinse-off product).

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

The complainant identified the following clauses of the Code as relevant:
  • Section II, Clause 4.1 – Substantiation
  • Section II, Clause 4.2.1 – Misleading claims
  • Section II, Clause 7 – Comparative advertising 

RESPONSE

The Respondent argued, firstly, that if the content of the relevant web page is considered as a whole, together with the fact that the content appeared under the heading "Baby Bar”, the reference to "ordinary baby soaps” would be interpreted or understood to be a reference to "ordinary baby soap bars”, meaning traditional soap-based bars. However, in an effort to ensure that there is consistency in this interpretation and understanding, the Respondent undertook to amend the claim to read, "…it’s gentler and more nourishing than ordinary baby soap bars”, and to use this amended version of the claim in all other forms of media communication from the date of its response.
 
The Respondent submitted that it is very important to point out that the relevant web page never refers to its product as "Baby Dove Soap Bar”, nor does it use any direct or implied reference to the product being a "soap” product. This is not because of an oversight or editorial mistake. This is as a result of the formulation of the product and the positioning of the product in the market as compared to a general category of soap-based bars, even more confined to baby soap bars. It is also significant to point out that the use of the word "ordinary” in the context of the claim is not a disparaging or demeaning term, but is used to describe the distinction that exists in the marketplace between ordinary, traditional soap products and Dove Baby Bar. 

There is a distinction in the market between traditional, ordinary soap-based products and synthetic products. "Ordinary baby soap” here refers to a solid cleansing product that is made via the saponification process where fats, oils, or fatty acids are reacted with a strong base (usually NaOH or KOH) to create a water-soluble sodium/potassium salt, which is the main component of the formulation. These "ordinary soaps” typically have a pH around 9 to 11. The Dove product is not an ordinary soap but rather a synthetic-based detergent bar, also referred to as a "syndet” bar. Its primary formulation component is a mild, synthetic surfactant (Sodium Cocoyl Isethionate). The Dove product also contains a high level of stearic acid and palmitic acid, which is known to mirror skin-natural lipids, and will deposit onto skin during washing, acting as skin nourishment.

The Respondent referred to published literature in submitting that a syndet bar has a lower irritation potential than soaps, and that syndet bars proved to be milder and less drying to the skin than soap-based bars. In the case of syndet bars, the primary surfactant, sodium cocoyl isethionate, is intrinsically less irritating to the skin tissue than soap, and the relatively high level of fatty free acid in such a bar provides a moisturising benefit that helps to keep the skin hydrated. The Respondent further submitted that the literature shows that the after-effects on skin of washing with soap-based bars included tightness, dryness, barrier damage, erythema, irritation and itching, and that these after-effects are minimised with the use of mild surfactants and the incorporation of beneficial agents.

The Respondent argued that once a product is technically classified as a syndet bar, one could, with reference to the scientific and academic writing on the topic, attribute qualities to the product that distinguishes it from ordinary soap-based bars. It further argued that its claim need not be substantiated with regard to each and every product on the market. In line with Clause 7.3 of Section II, group comparisons are acceptable, and the Respondent has complied with the remainder of Clause 7. The group comparison being made is based on syndet bars versus ordinary baby soap bars.

The Respondent submitted a report from Dr Anwar Jardine in support of its claims, together with all the reports relied upon by Dr Jardine.

ASA DIRECTORATE RULING

The ASA Directorate considered the relevant documentation submitted by the respective parties.

Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation, and that documentary evidence other than survey data shall emanate from, or be evaluated by, an independent and credible expert in the particular field to which the claims relate.

Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

Clause 7.1 of Section II states, inter alia:

7.1 Advertisements in which factual comparisons are made between products and/or services are permitted provided that- 
7.1.1 …; 
7.1.2 only facts capable of substantiation are used as governed by Section II Clause 4.1; 
7.1.3 …; 
7.1.4 the claims are not misleading or confusing as governed by Section II Clause 4.2…”

The Directorate notes that on the Dove Baby Bar web page where the disputed claim appeared, the following claim also appeared: "So unlike ordinary baby soap bars, they won’t dry out your baby’s delicate skin” (emphasis added). The Directorate also notes that the web page made no reference to liquid soap products. Accordingly, the claim "… it’s gentler and more nourishing than ordinary baby soaps” would likely have been interpreted to mean that Dove Baby Bar is gentler and more nourishing than ordinary baby bar soap products. In any event, the Respondent has undertaken to refer specifically to "ordinary baby soap bars” going forward, so this is no longer a point of contention.

The only question before the Directorate is therefore whether the claim is substantiated or misleading.

The Complainant argued, in essence, that the Respondent’s claim is unqualified and sweeping, and would be interpreted to mean that the Dove product is "gentler and more nourishing” than all "ordinary baby soaps” in South Africa. The Complainant also argued that it is extremely unlikely that the Dove product has been proven to be "gentler and more nourishing” than all of these products.

The Complainant relied on the following previous ASA rulings as support of its argument that the Respondent should substantiate that Dove Baby Bar is gentler and more nourishing than all of the "ordinary baby soaps” in South Africa:
The first three matters dealt with the following express claims:
  • Dettol Hand Liquid Wash: "10X PROTECTION *vs Bar Soaps” and "10 TIMES MORE PROTECTION THAN SOAP BARS”;
  • Omo: "NO ONE BEATS OMO ON STAIN REMOVAL”;
  • New Omo: "The super-fast cleaning technology of new Omo is unbeatable at removing tough stains faster”, "No one removes stains faster”, and "No one removes tough stains faster”.
While there was no similar express claim in the Dove Body Wash-matter, the Directorate found that the overall communication of the television commercial implied that Dove Deeply Nourishing Body wash was significantly less harsh to the skin than all other body wash products available in the market. 

Considering the above claims, it is clear that the claims in the Omo and New Omo-matters were absolute claims that no other product could beat Omo/New Omo at stain removal. Accordingly, the advertiser was required to prove that not a single product outperformed Omo in removing stains, as the claims amounted to unqualified top parity claims.

As for the claims in the Dettol Hand Liquid Wash-matter, the comparison was simply between the Dettol product and "bar soaps”, and the Advertising Industry Tribunal noted that "… It would have been simple enough for Reckitt to have limited the claim to ‘most’ bar soaps or ‘the majority of bar soaps’.”

On the other hand, the claim currently in dispute does not categorically state, for example, that Dove Baby Bar is "twice as gentle”, or that it provides "double the nourishment” – claims that would signify that comparative testing was done. Furthermore, the claim is not that Dove Baby Bar is gentler and more nourishing than simply "baby soap bars”. The claim is that Dove Baby Bar is gentler and more nourishing than "ordinary baby soap bars” (emphasis added). Given the context in which the claim appeared, this is an important qualification.

In order to properly appreciate the Respondent’s claim, it is necessary to quote the content of the web page where the claim appeared:

"Baby Bar
"Gently care for your little one’s delicate skin with Baby Dove Baby Bar. With our ¼ moisturising cream for touchably soft skin, it’s gentler and more nourishing than ordinary baby soaps.
"A baby’s skin is still developing and can lose moisture up to five times faster than yours. That’s why it’s important to keep it moisturised to help protect their delicate skin barrier. Baby Dove Baby Bars contain our unique ¼ moisturising cream for touchably softer skin. So unlike ordinary baby soap bars, they won’t dry out your baby’s delicate skin. Hypoallergenic and pH neutral, Baby Dove Baby Bars are also ophthalmologist, dermatologist and paediatrician-tested, to reassure you that you’re doing the best you can for your baby’s skin.
"Baby Dove Baby Bars go beyond mildness to add back essential nutrients to your baby’s delicate skin, to keep it soft and nourished while they gently cleanse…”

In essence, the communication to consumers is that Baby Dove Baby Bar is not like "ordinary” baby soap bars because it contains ¼ moisturising cream, and therefore does not dry out a baby’s skin but moisturises it. In other words, the Dove Baby Bar product is being compared to baby soap bars that do not contain moisturising cream or other moisturisers.
The Directorate has previously accepted Dr Jardine as an independent and credible expert in the cosmetics field (see Ponds / Johnson & Johnson / 13690 (2 July 2009) and Lifebuoy / Dettol / 14813 (12 Oct 2010) for examples). There is nothing before the Directorate to indicate that his status in this regard has changed.
The Directorate therefore accepts Dr Jardine as an independent and credible expert for the purpose of Clause 4.1.4 of Section II of the Code.
Dr Jardine’s report, which is based on a number of published articles and confidential test reports from Unilever, states, inter alia:

"Surfactant molecules cause product lathering which is erroneously associated with cleaning power by consumers. Unfortunately, surfactants are also the primary cause of cleansing damage to stratum corneum (SC) lipids and proteins … To maintain a normal state of moisturization, the body secretes natural oils that form an occlusive layer that controls trans-epidermal water loss (TEWL) … the key attribute of Baby Dove Bar is its ability to enhance the skin hydration process by using a technically proven formulation…
"A key component of Baby Dove Bar’s moisturizer is stearic acid which is a natural component of the skin’s barrier lipids. Baby Dove Bar is formulated with a mild surfactant, a directly esterified fatty isethionate (DEFI) system in combination with stearic acid to minimize lipid extraction from the SC…
"… 25% of Baby Dove Bar formulation consists of a spreadable cream. This cream consists of a combination of ingredients typically found in a moisturizing cream. A clinical study of this cream was conducted to demonstrate that this cream can moisturize the skin. After five days of treatment the treated legs showed a much lower level of dryness, while the untreated legs continued to show a constant, significant level of dryness…
"To demonstrate product efficacy of Baby Dove bar, extensive product testing was conducted to evaluate its performance in terms of its mildness, moisturizing and nourishing properties. The studies demonstrated increased moisturization and emollient deposition in vivo. The latter product attributes, by virtue of its SC deposition and function, were consistent with a nourishing benefit. A clinical Forearm Controlled Application Technique (FCAT) test was performed. The effect of the product on the skin was evaluated by TEWL measurements using Visual Dryness, Skicon, and Corneometer readings as assessment tools. Baby Dove Bar performed significantly better in TEWL than sites treated with an ordinary baby soap bar. Hypoallaergenic tests were performed according to a standard Human Repeated Insult Patch Test (HRIPT). The zein test is an established method to rank potential mildness and irritation of surfactants. According to zein solubility tests, Baby Dove Bar is clearly in a different class than ordinary baby soap bars.
"… Thus, the claims; ‘1/4 moisturising cream for touchably soft skin, it’s gentler and more nourishing than ordinary baby soaps/soap bars’ is supported.”

In light of the above, the Directorate finds that the Respondent has substantiated the claim that its product contains "¼ moisturising cream”, as well as the claim that its product is "gentler and more nourishing than ordinary baby soap bars” because of this. The Directorate is also satisfied that the Respondent’s claims are not likely to mislead consumers, given the context in which they appeared on the relevant Dove web page.

The Respondent has therefore not contravened Clauses 4.1, 4.2.1, 7.1.2 or 7.1.4 of Section II.

The complaint is dismissed.


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