How many have had a conversation with a client something like this:
Q: Here is an ad. Can you approve it?
A: Is all of this substantiated?
Q: Can you just draft some disclaimers to make it okay?
We did not think we were alone. It is hard for marketers to understand, but a disclaimer cannot always cure all things. There is the basic tenet that you cannot make a promise with a claim and then use a disclosure to essentially take away the promise. A disclosure is to be used appropriately only to provide additional detail or clarifying language to put the claim into perspective. Well, sometimes a disclaimer can actually be the source of a problem. Or at least highlight a problem. In a recent NAD case, L’Oréal and Maybelline mascara ads using the disclosure “Lashes were enhanced in post-production” were challenged. The ads at issue included “depictions of lash visuals and product performance claims relating to eyelash volume and length.” L’Oréal did not opt to defend the merits of the case but told NAD that it had discontinued the challenged print and broadcast ads before the challenge was initiated and said it had plans in the works to replace in-store ads. NAD closed the case as to the ads that had been discontinued and said it believed changing the rest of the ads was necessary and proper. This case is in line with other recent decisions by the U.K. Advertising Standards Authority involving beauty products (see here and here).
The basic takeaway is in ads showing how good one can look with a cosmetic where there are product performance promises (e.g., two times the length, visibly smaller pores), photoshopping may be found to be misleading or deceptive. In this case the disclaimer in NAD’s view did not serve to clear up any potential confusion. Perhaps instead it highlighted the issue for the competitor challenger. This is not to say that skipping a disclosure cures the issue by any means. These decisions have been limited to the self-regulatory process and not been the basis of federal or state enforcement to date, but if an enforcer did look at such a case it is likely an effort at a disclosure would be viewed more favorably than silence. But a disclosure – unlike a good foundation, cover-up or mascara – is not going to mask imperfections in a claim. The trend, at least in the self-regulatory realm, is to treat models as living product demonstrations in beauty product ads, where the image of the model is coupled with express performance claims; and to treat post-production enhancements as exaggerated and misleading. But are consumers misled? On the Oscars runway, when asked about her recent Dior campaign, Jennifer Lawrence reportedly laughed and said “of course its photoshop — people don’t really look like that.” If litigated this is a question ripe for probing with consumer survey evidence, but until then it is best to avoid post-production touch-ups of images that could be said to show how your product works, and recognize that disclaimers are unlikely to cure the issue and may even serve to tip off a potential plaintiff.