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The National Advertising Division has determined that  L’Oreal U.S.A., Inc., can support certain performance claims for two mascara products. NAD has recommended, however, that the company discontinue the use of eyelash inserts in mascara advertisements that also make quantified performance claims or explicitly tell consumers – in the main message of the advertisement – that an image depicts the use of both mascara and lash inserts. L’Oreal has said it will appeal NAD’s decision to the National Advertising Review Board.

 
NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.
 
As part of its ongoing monitoring program, NAD requested that L’Oreal provide substantiation for certain express and implied advertising claims made for the company’s Maybelline “Rocket” mascara and L’Oreal Paris “Telescopic Shocking Extensions” mascara that appeared on the advertiser’s website and in print advertising.

 
Following its review of the evidence submitted by the company, NAD determined that L’Oreal could support express claims for both products, including:
 
“8X Bigger. Smoother. Even.”
“Our Patented Supersonic Jumbo Brush with Micro Bristles.”
“Loads on Big, Sleek Volume Instantly.  Our Fast-Glide Formula Keeps Lashes Smooth, Even.”
“Ready for a shock? L’Oreal Introduces Liquid Lash Extensions.”
“Length + Impact Without Extensions.  Now surround lashes base to tip for the high-impact look of extensions from a mascara.”
“Incredible design: The lash-hugging brush is contoured with 200 bristles to intensify every lash.”

 
Further, regarding the Telescopic advertisement, L’Oreal represented to NAD that only two or three individual lash inserts, matched by color to the models’ own lashes, were applied. NAD determined that the lashes were not artificially enhanced and that the image of the model’s eyelashes is an accurate depiction of the product’s performance.   

 
However, NAD reached a different conclusion when considering the messages implied by the advertising for the Mabybelline “Rocket” product. NAD found that the advertising  did not convey the message that users of the product would get lashes like those shown in the accompanying photographs or that the lashes depicted were achieved solely by use of “Rocket” mascara.

 
However, NAD did determine that the photographs were product demonstrations of the express quantified performance claims in the advertisement.

 
In this case, NAD noted, “it was L’Oreal’s position that artificially enhanced stylized glamour shots are not misleading because consumers understand that such visuals are not intended to represent typical consumer results from usage.”  The company maintained that the ad images are not product demonstrations that invite consumers to assess quantified claims and further that the use of lash inserts were disclosed in the ad.

 
NAD determined, however, that L’Oreal’s own consumer-perception evidence – a reliable, well-controlled survey that employed sound methodology and design – showed that the image did, in fact, convey a performance benefits message and was relevant to the net impression created by the advertisement as a whole.


“To be clear,” NAD’s decision stated, “NAD is not suggesting that the beauty industry take ‘beauty’ out of cosmetic advertising. … NAD is simply restating what the law requires – that when you make a performance claim for mascara and include a photograph depicting a woman wearing the mascara, the picture should not be enhanced by artificial means – either digitally or physically.”


L’Oreal, in its advertiser’s statement, said that there is “nothing false or misleading about featuring a model in a mascara ad who obviously is wearing lash inserts that change the shape of her lash line. … Accordingly, L’Oreal respectfully disagrees with NAD’s findings and recommendations regarding this photograph and its recommendation … mandating the content of hypothetical future advertising.  Pursuant to Section 3.1 of the NAD/NARB Procedures, L’Oreal appeals these aspects of NAD’s decision to the National Advertising Review Board.”