The timing of measurements
59 Companies that market moisturising products that are designed to be left on the skin or washed off usually follow the recommendations of the European Group on Efficacy Measurements on Cosmetics and Other Topical Products (EEMCO) for instrumental measurements of skin hydration (the EEMCO guidelines). The EEMCO guidelines involve an experimental design whereby the first measurement is taken at least 30 minutes after product application to measure the hydration levels of, for example, cosmetics. The EEMCO guidelines recommend waiting at least 30 minutes before measuring skin hydration for topically applied moisturising ingredients.
60 Dr Rawlings says that at time points earlier than 30 minutes it is impossible to discriminate between the functioning of the moisturising ingredients and the excess water present on the skin, either from the product or as a result of the regimen.
61 In issue were:
The relevance of the methodology in the EEMCO guidelines which, the experts agree, are primarily designed for leave-on products.
The relative hydration effect of Hydro Polyox in the context of the amount of water previously applied to the skin during the shaving process and whether there is a need for a time period for measurement capable of reflecting such an effect.
62 Energizer says that the EEMCO guidelines were developed to assess the hydration effects of long-term moisturisers, as distinct from a product yielding a short-term hydration effect. Energizer draws a distinction between a moisturising product and a hydrating product. I refer to Professor Humbert's distinction at [36]. Professor Humbert says that the EEMCO guidelines are especially used for cosmetic efficacy. He notes that the objective of a shaving gel is different from that of a hydrating cosmetic. He says that shaving with a hydrating gel is not aimed at replacing the hydrating cream that is applied afterwards. Professor Humbert recognises that the studies relied upon by Energizer involve a departure from the EEMCO guidelines, but says that such a departure is warranted because, in contrast with a cosmetic that does not change the surface of the skin but acts directly on the state of the skin, shaving induces changes in the structure of the skin and on the sebaceous function and therefore on the hydrolipidic film.
63 In Professor Lavker's opinion, there is a fundamental distinction between cosmetic products, known as moisturisers, and transient products, such as shaving products, which have a short-lived moisturising or hydrating effect in the course of their application. In his view, shaving products are not moisturising products "in the classical sense". He describes skin hydration as the amount of moisture in the outer layers of the skin and on the skin surface, while he describes skin moisturisation as the process of increasing skin hydration through the application of complex chemical agents.
64 Dr Grove is of the view that the EEMCO guidelines are not suitable for assessing hydration during the shaving process, which is short-lived in application and effect.
65 I accept the distinction, for the purposes of this case, between products which provide short-term hydration and products that moisturise. I do not accept that experiments relied upon in these proceedings that did not conform to the EEMCO guidelines, in that the time of testing was less than 30 minutes, are to be regarded as irrelevant on that basis.
66 The parties differ on the relevant time in which to assess whether the Hydro Products have a hydrating effect during the shaving process.
67 Energizer conducted clinical tests at 5, 10 and 15 minutes after the completion of the rinsing step.
68 P&G contends that the intervening step of rinsing the face confounds any extrapolation back to the time of the shaving process. P&G submits that the presence of copious amounts of water invalidates the measurements taken by Energizer at 5, 10 and 15 minutes. P&G says that the appropriate clinical tests should have been in accordance with the EEMCO guidelines, which require measurements to be made at 30 minutes after rinsing. Otherwise, P&G says, the "extreme" hydrating events of initial wetting, the application of shaving cream (which is acknowledged to be hydrating), and the rinsing step render the tests effectively invalid or meaningless.
69 In the alternative, P&G submits that , as Energizer's claim (as characterised by P&G) is that Hydro Polyox has a differential effect from other forms of polyox in the period between rinsing and drying, 5 to 15 minutes is not the appropriate time period for measurement. P&G points out that once men have rinsed their faces they do not wait 5 minutes in order to dry them. It follows, P&G says, that Energizer has not carried out any clinical tests during the claimed hydration period.
70 Energizer's case is, essentially, that Hydro Polyox is deposited on the skin by the use of the razor, from the gel reservoir that is placed above the blades. That is, it is deposited after the blades have passed over the skin. The Hydro Polyox adheres to the skin and withstands the rinsing stage, staying on the skin until removed by the process of drying. That means, it contends, that measurements of the level of hydration at the 5, 10 and 15 minute time periods can be extrapolated back, not only to the time immediately post-rinse, but also to the time of deposit of the Hydro Polyox on the skin. Professor Humbert endorses Dr Grove's approach in testing a hydration effect during shaving by taking measurements shortly after shaving.
71 In Professor Lavker's opinion:
Hydro Polyox remains on the surface of the skin following rinsing with water.
Following application to the skin, Hydro Polyox lubricates and transiently hydrates the skin.
There is no fixed time post-application of a substance to assess skin moisture levels.
Assessment of Hydro Polyox's hydration effects, which are short-term or transient, necessitate measurements close to the cessation of the shaving process (for example, 0-15 minutes).
Clinical studies conducted by cyberDERM, Energizer Personnel Care, Pro Panel and P&G demonstrate that after a short-term (5 to 15 minutes) exposure to Hydro Polyox, skin hydration values are increased. He would expect that the hydration values would be even higher in the period 0 to 5 minutes after the application of Hydro Polyox during the shaving experience.
72 I accept the evidence from Energizer's witnesses as to the validity of the experiments, the reasons why measurements taken from 5 to 15 minutes post-shave are relevant and the conclusions which may be drawn from the experiments. Energizer has advanced a theoretical basis for increased hydration by Hydro Polyox based, in turn, on the characteristics of Hydro Polyox and supported by Professor Lavker's opinion, which I accept. P&G has not discredited, disproved or brought into question this mode of hydration. On the theoretical basis so advanced, an increase in measured hydration that survives rinsing and occurs despite the presence of quantities of free water is explained by and referable to Hydro Polyox.