In a recent decision, the NARB found that an advertisement for L’Oreal mascara featuring a photograph of a model wearing lash inserts would not be literally false if the advertiser clearly and conspicuously disclosed that lash inserts were used on the model.  The NARB decision departs from the NAD decision, where NAD had found that a disclosure would be inadequate to remedy the literally false message conveyed by the advertisement, because it contradicted the advertisement’s main performance claim.

Several months ago, as part of its routine monitoring program, the National Advertising Division reviewed advertisements for a variety of L’Oréal mascaras.  One of the ads, for L’Oreal’s Rocket mascara, claimed that Rocket made lashes look “8X Bigger,” and featured a photograph of a model wearing artificial “lash inserts” (artificial lashes) that enhanced the appearance of the model’s eyelashes.  NAD determined that the photograph of the model constituted a product demonstration and that since the demonstration did not accurately depict the “volume that can be achieved by applying the mascara alone” (vs. with the use of lash inserts), the message conveyed by the advertisement was literally false. Although the advertisement had disclosed the model’s use of lash inserts in small type at the bottom of the page, NAD found that the disclosure was insufficient to cure the false message because it contradicted the main claim.  As a result, NAD recommended that L’Oréal cease using lash inserts in its advertisements for mascara when those advertisements made numerical claims about performance, or, alternatively, expressly state that the image shows the volume consumers can expect to achieve when the mascara is used together with lash inserts in the main message (rather than in a footnote). The advertiser appealed to the NARB.

Contrary to the NAD, the NARB found that use of lash inserts did not render the advertisement “literally false,” if such use was prominently and conspicuously disclosed, reasoning that an increase in volume was just as applicable when applied to real or inserted lashes.  Although the NARB found that the advertiser’s disclaimer could have been clearer by noting that inserts had been used, it disagreed with the NAD’s findings that the disclaimer contradicted the main message of the advertisement.  NARB also disagreed with NAD’s finding that the disclosure regarding the use of lash inserts needed to “be part of the ‘main message’ or ‘main claim’ of the advertisement,” and found instead that the advertiser should be able to determine where and how the disclaimer should be included within the advertisement, as long as it was made clearly and conspicuously to consumers.

Although the NARB decision to defer to the brand owner’s determination of how and where to disclose lash inserts within the advertisement may present a victory for advertiser autonomy, advertisers should not overlook the Panel’s underlying message: clear and conspicuous disclaimers must be used if alterations are present in a photograph depicting product performance.