Addressing a controversial issue for the cosmetics industry, the National Advertising Review Board concluded that L’Oreal’s mascara ads featuring a model wearing lash inserts are not “literally false” if the use of inserts is appropriately disclosed to consumers.

The Board’s decision reversed an earlier ruling from the National Advertising Division, which recommended that the advertiser stop the use of eyelash inserts as they constituted a false demonstration.

The case stems from the NAD’s investigation of ads for two different L’Oreal products: the Maybelline Rocket Volum’ Express Mascara (Rocket) and Paris Telescopic Shocking Extensions Mascara (Telescopic).

The NAD ruling concluded that the Rocket advertisement was “literally false” because ads used images of a model wearing the mascara with the statement “lashes styled with lash inserts” appearing in small print below the tagline. The NAD found that the picture was not an accurate depiction of the volume that can be achieved solely by applying the mascara and recommended that L’Oreal discontinue the use of lash inserts or include a statement about their use in the main message of the ad.

Although the NARB agreed that consumers could reasonably take away a message that the Rocket model’s eyelashes show the degree to which the mascara can increase volume and thickness, it found the ad itself was not literally false. “While there is a question as to whether the lash insert disclaimer is clear and conspicuous,” according to the decision, “the panel does not believe that the photograph is ‘literally false’ if use of lash inserts is appropriately disclosed and the photograph accurately shows the effect of the advertised mascara on the model’s lashes (both real and inserted).”

L’Oreal should make its disclaimer clearer and more conspicuous, the NARB said, but declined to rule that a lash insert disclaimer must necessarily be part of the main message or main claim of an advertisement. “L’Oreal should have discretion to determine where and how such information is included in the advertisement as long as the result is that the information is clear and conspicuous to consumers.”

The NAD had determined that the Telescopic ad accurately depicted the mascara’s performance, since artificial enhancers were not used. Nevertheless, it cautioned against using artificial lashes in future advertisements without a clear disclosure. The panel refused to set out a hard-and-fast rule “eliminating the possibility that a clear and conspicuous disclaimer could be used to inform consumers that a model’s eyelashes have been enhanced with inserts. Consideration of the messages reasonably conveyed by a model’s photograph would necessarily need to be made in the context of the entire advertisement in which the model’s photograph appears.”

To read the NARB’s press release about the case, click here

Why it matters: In a rare victory for the advertiser at the NARB, the panel allowed L’Oreal the discretion to determine how to clearly and conspicuously disclose that models’ lashes are “styled with lash inserts.” Similarly, the self-regulatory body declined to make recommendations for hypothetical future ads, instead noting that a determination of the messages conveyed by a model’s photograph featuring lash inserts would need to be made in the context of the entire advertisement.