NAD has now brought another monitoring case against an advertiser of mascara showing spokesmodel starlets with lashes that were plumped or lengthened with something other than the advertised product. The prior cases involved post-production retouching and the newest case against L’Oreal involves adding some eyelash inserts to the models in two different ads. The express claims in the spots were all found to be substantiated adequately, including 8x bigger, smoother, even, length plus impact without extensions. NAD’s position, and it has been consistent, is that celebrities in mascara ads are not simply brand endorsers but are live product demonstrations and as such, their lashes cannot be altered with anything other than the advertised mascara. And a disclosure that the shown lashes were enhanced post- or pre-production will not cure any alleged deception (here L’Oreal added “styled with lash inserts”). NAD asserted that the advertising reasonably conveys that the model got her long lashes solely from the mascara and that customers will get lashes like those depicted.
L’Oreal first educated NAD in the use of lash inserts in cosmetic advertising. These are not your mother’s false lashes. These individual lash additions can boost the model’s lash count, and are a common practice, or they can be used simply to replace occasional gaps in the lashline. Due to frequent heavy makeup application and removal that celebrities endure, lashes can be damaged or missing so the lash inserts are simply to restore missing fringe. In this case, there were two ads at issue both involving use of lash inserts, one where they were used only to replace missing lashes and another where they were used more liberally to create a more dramatic look. L’Oreal asserted, however, that they were only used to create an extended outer corner of the lash line and that any increase in volume or length did come solely from the mascara. L’Oreal introduced evidence that use of lash inserts is a hot fashion trend and not just among those who walk the red carpet or the catwalk. And a customer could expect to achieve or approximate the looks shown with use of lash inserts and the mascara.
L’Oreal asserted that cosmetic advertising has always used idealized images of beauty and should not be held to the standards of a traditional product demo. L’Oreal also brought something new to the table – a well conducted consumer survey to rebut NAD’s conclusion.
And since NAD rarely meets a survey it credits, we will take a detour in our long lash lesson to review the quality survey basics. Over 200 nationally representative women in the mascara market age range who use or are likely to purchase mascara in mass market retail channels participated in an online survey with follow up by phone to confirm participation. The survey added a screening question as a quality control to weed out speeders and required participants to take the survey on a laptop or desktop rather than a mobile device so the tested one-page ad could be seen in full on one screen. The survey began with open-ended questions continuing to more focused questions. And the expert used a control to adjust for “noise” including guessing. NAD agreed the survey was well conducted and sound in every way as far as structure and design.
The participants were asked the main idea and other ideas communicated by the ad. The majority said the mascara would create thicker lashes, others made similar positive comments about the product. Only 2% said they thought based on the ad that their lashes would look like the model’s. Next, participants were asked how they thought their own eyelashes would look if they used the product and only 9% said they would look similar to the model’s (with even more respondents saying they would look different from the model). Adding all of these responses together, only 12.6% said their eyes would look like the model’s and 22.8% said they would look different. Thus L’Oreal asserted that verbatim answers to the open-ended questions show consumers do not take away a false product demonstration message. Then the survey asked participants specifically whether they thought their lashes would look the same as or different from the model’s, and 30% said the same. To adjust for guessing and yea-saying or the tendency of some people to agree with any proposition proposed in a survey, participants were also asked if the ad communicated how long the product would last (when this was not addressed at all). 25% said yes. Subtracting the noise level of 25% from 30%, L’Oreal said there was a 5% level of confusion, well below the actionable 20% threshold. Thus the advertiser said consumers understand this is a stylized beauty shot and not an actual product demo. At this point things seem to be looking pretty for the advertiser. But NAD went on to conclude the survey did not ask the right questions. Even though few responded that the ad communicated that their lashes would look like the model’s, this did not mean they understood the model’s lashes had been enhanced. NAD felt the visual picture of the model likely contributed to the open-ended impressions that the mascara would make the lashes thicker and longer. The Advertiser did not demonstrate participants affirmatively understood the image as a stylized glamour shot. To the extent many reported their lashes would not look like the model’s, this could have been because they perceived a difference in their lashes. Very few specifically reported knowing the lashes shown were partially fake. And then, even after praising the survey, NAD concluded it was meaningless because: “Further, although the express performance claims promote the ability of Rocket mascara to produce lashes that are ‘8X Bigger,’ the photograph is not an accurate depiction of the volume that can be achieved by applying the mascara alone without the use of lash inserts, thus it is literally false. And it is well established that when a claim is facially false, it is not necessary to show that consumers have been misled.”
NAD went on to say they are not trying to take the beauty out of cosmetic advertising and that it is fine to use gorgeous models, expert stylists and perfect lighting. And NAD does not think consumers will believe they will look just like the depicted models if they use the advertised product. But “when you make a performance claim for mascara and include a photograph depicting a woman wearing mascara, the picture should not be enhanced by artificial means – either digitally or physically.” NAD only applied this conclusion to the use of lash inserts to add drama to the lash line. When lash inserts are used that replace missing lashes and match existing lashes, this is not an artificial enhancement.
NAD recommended to discontinue the ads or to expressly state as part of the main message they are showing volume that can be achieved with mascara and lash inserts. This is a novel departure that a disclaimer, no matter if it meets or exceeds the standard for being clear and conspicuous, cannot be used to provide material information. It is stated with no caselaw support, although later reference is made to another basic tenet that you cannot make a promise in a claim that you take away with a disclaimer. While the conclusion that a product demonstration cannot be enhanced is not new, (and the debate in these cases is whether a model glamour shot is a product demo at all), it will be interesting to see if NAD will apply this “must include in main message” conclusion more broadly in future cases.
L’Oreal is appealing the decision so there will be more to report in this mascara drama saga.