In September, NAD determined that P&G, could support express claims for the company’s Covergirl “Clump Crusher” mascara.
However, NAD recommended that P&G either discontinue the use of artificial lash enhancements in images used in mascara advertisements that make quantified performance claims or alert consumers—in the main message of the ad—that the images depict the volume achieved when CC Mascara is used together with lash inserts. The company has agreed to do so, according to NAD.
The advertising at issue featured the picture of a model whose eyelash volume had been increased through the use of lash inserts before being coated in Clump Crusher mascara, with a small disclaimer at the bottom of the page that stated “lashes styled with lash inserts.”
Following its review of the evidence in the record, NAD determined that P&G could support express advertising claims that included:
“200% more volume” and “The new curved brush crushes clumps as it builds volume!” NAD also considered the implied claims that: “Consumers who use Clump Crusher mascara would get lashes like those depicted in the advertisement.” And The lashes depicted in the photograph were achieved solely by using Clump Crusher mascara.”
As an initial matter, NAD noted that the undisputed main claim in the print advertisement was that CC Mascara could increase the volume of lashes to 200% their normal volume. However, the volume that consumers saw in the photograph, NAD noted, was not from the mascara alone and had been artificially enhanced by the addition of false lashes. Although P&G provided a reasonable basis for the express claim that CC Mascara would increase the volume of consumers’ lashes, it is well-established that visual product demonstrations in advertisements must be truthful and accurate and cannot be artificially enhanced.
NAD recommended that P&G either discontinue the use of artificial lash enhancements in images used in mascara ads that make quantified performance claims or alert consumers—in the main message of the ad—that the images depict the volume achieved when CC Mascara is used together with lash inserts.
P&G, in its advertiser’s statement, said it finds “NAD’s recommendations regarding the use of lash inserts reasonable, particularly that the cosmetics industry may continue to use lash inserts in mascara advertising featuring performance claims provided their use is disclosed as part of the main message of the advertising. P&G has always been a leader in this area; i.e., disclosing the use of lash inserts, and as a strong supporter of the self-regulatory process, P&G will take NAD’s recommendations into account in future advertising.”
NAD asked L’Oréal to stop using lash inserts in advertisements. NAD determined that L’Oréal can support certain performance claims for two mascara products, but recommended 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’Oréal said it would appeal NAD’s decision.
As part of its ongoing monitoring program, NAD requested that L’Oréal provide substantiation for certain express and implied advertising claims made for the company’s Maybelline “Rocket” mascara and L’Oréal Paris “Telescopic Shocking Extensions” mascara that appeared online and in print advertising.
Following its review of the evidence submitted by the company, NAD determined that L’Oréal 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’Oréal Introduces Liquid Lash Extensions;” “Length + Impact Without Extensions. Now surround lashes base to tip for the high-impact look of extensions from a mascara;” and “Incredible design: The lash-hugging brush is contoured with 200 bristles to intensify every lash.”
Further, regarding the Telescopic advertisement, L’Oréal explained to NAD that only two or three individual lash inserts 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 Maybelline “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.
NAD noted, “it was L’Oréal’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’Oréal’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 ad 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’Oréal 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’Oréal respectfully disagrees with NAD’s findings and recommendations regarding this photograph and its recommendation...mandating the content of hypothetical future advertising....L’Oréal appeals these aspects of NAD’s decision to the National Advertising Review Board.”