I love a good mascara case. And it’s been too long. The last time NAD looked at mascara, it was monitoring challenges over whether celebrities in mascara ads were merely spokesmodels or product demonstrations and concluded the latter. (See here and here and an earlier blog I wrote on this topic.) NAD recommended clear disclosure if the model used lash inserts or other enhancements beyond the mascara to plump and lengthen her lashes. This week came a case involving mascara that NAD found could not be cured with a disclaimer. Rather, a #1 selling claim must be supported with reliable and most recent data.

In this case, Benefit enjoyed the top spot in the prestige mascara category three years running with its They’re Real Mascara, until the latter part of 2016 and this year, when it was bested by Too Faced’s Better Than Sex Mascara. (Whether the latter name is a performance claim and whether it is supported are questions for another challenge!) Benefit promoted at point-of-sale and on the web that it was the best-selling prestige mascara in the US and the best-selling for three years, using a disclaimer identifying the source as the NPD Group dollar sales from July 2013-2016. Too Faced asserted that notwithstanding the source disclosure, readers would understand the claim to be based on current data, and its brand was the best-selling in dollars and units for 2016 full year and 2017. Benefit said the ads taken as a whole made clear the claims were based on past glories.

NAD found that notwithstanding the disclosures, the claims were phrased in the present tense and as such, one reasonable takeaway was a current superior sales message. Here, NAD found the disclosures did not meet the clear and conspicuous standard, but even if they had, that the dated source information would contradict – not clarify – the main claim of the mascara as the current bestseller.

A best-selling claim can be very powerful, telling consumers, “Lots of folks love us – go ahead give us a try.” We often field questions as to whether such a claim should be based on dollar or unit sales, and have blogged about these issues before. This is particularly relevant when the same brand does not come out on top using its measurements. Conventional wisdom says that a best-selling claim based on units is the better apples-to-apples comparison, although if properly qualified, a claim based on sales data likely will stand up. The bigger issue is often how often the data must be refreshed, and if a top seed is displaced, how long an advertiser has to remove the claims. While there is no hard and fast rule, an advertiser should examine the claims afresh each time new data is released – be this monthly or quarterly or annually. Putting such a claim on packaging presents the biggest gamble, as changeover can take time depending on inventory. Limiting such claims to advertising where claims can be nimbly be removed or modified is wise, particularly when the margin between the top seller and other competitors is slim and when there is expected and frequent innovation in a product category.