NAD: Sea & Ski Sunscreens May Go ‘Beyond UV,’ But Not To Infrared Zone

Cross Brands Manufacturing’s stingily hand-picked in vitro test results for Sea & Ski sunscreens do not demonstrate a clear, consumer-relevant infrared protection capability, let alone show that IR defense translates to meaningful skin-health benefits, according to the National Advertising Division’s Sept. 7 decision.

The resurrected Sea & Ski sunscreen brand may have just incurred a substantial setback, in the form of a National Advertising Division referral to the Federal Trade Commission for unsubstantiated infrared protection claims.

Bayer AG, owner of the Coppertone sunscreen brand, challenged the brand’s “Beyond UV” claims in the NAD’s self-regulatory forum, leading to a decision issued Sept. 7.

The NAD case could be of interest to other companies considering IR protection claims as a means of differentiating their offerings in a sunscreen market that hasn’t seen a new active ingredient greenlighted by FDA for OTC use in recent memory. (Also see "GAO Report Casts Shade On Sunscreen Ingredients' Chances With FDA" - HBW Insight, 20 Nov, 2017.)

NAD notes in its decision, “Given the regulatory environment in which the sun-care industry exists, NAD appreciates how important it can be for advertisers to develop and promote technological advances associated with its products.”

However, the advertising watchdog group continues, “when doing so, advertisers must nonetheless ensure that their advertising claims about those innovations and their associated benefits are truthful, accurate and not misleading.”

Cross Brands said its sunscreen products achieved “exemplary” IR protection results in independent lab testing, but it could not offer up more detailed information because such testing is “highly sensitive, confidential and proprietary.”

Sea & Ski made a name for itself in the 1960s by targeting young, active consumers, and its distinct green packaging and unique fragrance are still remembered fondly by commenters online. (Also see "Sea & Ski, Back On Sunscreen Scene, Slapped By Rival Who Never Left" - HBW Insight, 19 Sep, 2018.)

The brand’s new management told Florida Today in April that the company aims to capitalize on Baby Boomer nostalgia while also appealing to millennials and anyone else concerned about skin cancer and other damaging effects of sun exposure.

The “other” category evidently includes visible aging caused by IR rays, which Sea & Ski claims to stave off with its IR-Guard technology, providing protection “beyond UV.”

As Bayer noted, such statements exceed claims typically seen in the sunscreen marketplace, which of course is the point.

In its defense of the claims, Rockledge, Fla.-based contract manufacturer Cross Brands Manufacturing LLC pointed to scientific literature suggesting that IR solar rays have adverse skin effects, and provided snapshots of in vitro test results that it said back its claims as to Sea & Ski products’ IR-blocking capabilities.

Bayer's baseline position was that competent and reliable tests for IR protection don’t exist. Whether to Bayer's standards or not, Cross’s submission to NAD included a description of the Infrared Protection Factor Procedure used by a third-party laboratory to evaluate its products.

At an industry workshop in June, Craig Weiss, president and co-CEO of Fairfield, N.J.-based Consumer Product Testing Company, discussed tests that potentially can be performed to support IR-defense claims, while including such claims among those “that perhaps should not be made.” (Also see "Pollution Protection, Blue Light Defense Among Cosmetic Tests In High Demand" - HBW Insight, 19 Jun, 2018.)

Bayer’s main beef was that the limited evidence shared by Cross Brands – which it furnished under confidentiality terms in NAD procedures – did not clearly demonstrate the IR-protective efficacy of Sea & Ski sunscreens, much less the ultimate health benefits of shielding users from IR rays.

Bayer even suggested that IR radiation may do more good for skin than ill.

The challenger also noted that in FDA’s final sunscreen drug monograph of 1999, which has been stayed since 2001, the agency’s comments indicate that it considered the viability of “visible and/or infrared light protection” claims but rejected them due to lack of data.

Cross Brands countered that the final monograph in its stayed form is not binding and that Sea & Ski products are compliant with FDA’s 2011 final rule for sunscreen testing and labeling, which did not address IR protection claims.

NAD recognizes in its decision that “claims regarding sunscreens’ ability to protect consumers from UV solar radiation are highly regulated by FDA,” but “regulatory guidance regarding claims of protection from other potential harms from the sun is not as clear.”

Playing The ‘Confidential’ Card

In the end, NAD sided with the German drug firm regarding Cross Brands’ IR assertions, agreeing that they are not adequately supported – at least not by the evidence the advertiser provided. That included “selected pages of one IR protection test report showing the end results of that test,” apparently for a single Sea & Ski product, according to NAD’s account.

Cross Brands said its sunscreen products achieved “exemplary results” in the independent lab’s testing, but it could not offer up more detailed information because such testing is “highly sensitive, confidential and proprietary.”

NAD acknowledges that advertiser’s may well have an interest in keeping proprietary information safe from competitors, and NAD procedures permit summarizations that conform to guidelines.

Generally, however, “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,” NAD says.

Based on what was submitted, NAD could not determine that the disputed claims were justified for the entire Sea & Ski line. Regardless, the group’s attorneys question whether the in vitro test results hinted at by Cross Brands have relevance in consumer-use contexts, relative to real-world human biology.

The advertising self-regulatory group recommends that Cross Brands discontinue its Sea & Ski IR-protection claims accordingly. Due to the more immediate shortcomings of the advertiser’s evidence, NAD never reached the issue of whether fending off IR rays has a net health benefit.

The self-regulatory authority did throw the advertiser a rather meager bone, allowing Cross Brands to keep its “Beyond UV” claim in reference to water resistance and photo-aging protective benefits, as long as IR defense isn’t implied as well.

Cross Brands offered no statement in response to the decision, spurring NAD to refer the case to the FTC for possible follow-up enforcement action.