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May 12th, 2014
Nailed: NAD Says Beauty Product “Before and After” Photos Are Performance Claims
The National Advertising Division ("NAD") has asked Ontel Products Corp. to discontinue use of before-and-after photos in ads for the company's Pink Armor Nail Gel product. The front and side panels of Ontel's Pink Armor Nail Gel package showed "before" images demonstrating short, visibly-damaged and diseased fingernails next to "after" photos showcasing long, artfully manicured nails. A "dramatization" disclaimer appeared below the photographs on the package. Television commercials for the product showed similar before-and-after photos, consumer testimonials, and a demonstration showing the ad's announcer putting her hands into a bowl of rocks to show that, after using Pink Armor, her nails would not "chip, peel or crack whatever the attack." The demonstration also depicted gel penetrating deep into the nail bed to "[h]elp battered nails recover faster."
Coty Inc., a competing manufacturer of nail products, referred the Ontel advertising to the NAD. Coty argued that Ontel's before-and-after photos constituted actual product performance claims that created "expectations that consumers can transform short, broken and diseased nails into longer, stronger, healthier nails impervious to any chipping or cracking simply by using Pink Armor Nail Gel." Coty further argued that the photos were false and misleading because the fingernails that appeared in the "after" photographs were artificially enhanced and the results depicted were not achievable.
Ontel submitted no product testing to support its before-and-after photos. Instead, Ontel argued that its product packaging clearly and conspicuously stated that the photographs were "dramatizations," that the dramatizations constituted "puffery" because "consumers are accustomed to seeing dramatizations in advertising," and consumers would therefore not believe that the results being shown were actually achievable. Ontel also submitted positive testimonials from uncompensated consumers in support of its demonstrations.
The NAD found that before-and-after photographs are product performance claims that must be supported, accurate, and representative of the level of product efficacy that a reasonable consumer can expect to achieve. NAD found that Ontel's use of a "dramatization" disclaimer in connection with its before-and-after photographs did not "insulate it from its responsibility to provide evidence that consumers will typically achieve nails similar to those depicted in the 'after' photograph when using the product according to its use instructions." Given the lack of reliable evidence in the record supporting Ontel's claims, NAD recommended that Ontel discontinue use of the before-and-after photos.
This case is the latest in a series of recent cases on misleading demonstrations. As we previously reported, both the NAD and the FTC have brought recent cases against major advertisers for use of misleading demonstrations. This line of cases should serve to remind advertisers and their agencies that:
- a product demonstration must accurately depict how the product performs;
- adding a disclaimer to an otherwise misleading demonstration will never serve as a suitable cure; and
- product performance claims about what consumers can expect to achieve with use of a product, including those claims made visually through the use of demonstrations, must reflect typical performance, not outliers.
If you have any questions about the Ontel Products Corp. case, demonstrations in advertising, or other advertising law issues, please contact Terri Seligman at (212) 826 5580 or email@example.com, Hannah Taylor at (212) 705 4849 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Advertising, Marketing and Public Relations Group.
Other Advertising Law Alerts
FTC Updates Endorsement Guide FAQs and Settles First-Ever Action Against Individual “Influencers”
Recent developments demonstrate the FTC's continued interest in social media endorsements.
September 11 2017
FTC Announces Reforms to Its Investigative Process
Recently, the FTC announced a set of internal reforms intended to improve the process by which the Commission investigates unfair, deceptive and fraudulent business practices. The reforms relate to the Civil Investigative Demands ("CID") that the FTC's Bureau of Consumer Protection issues to request information from investigation targets.
September 7 2017
End of an Era at NAD?
Last week Frankfurt Kurnit's Advertising Group proudly hosted "A Twenty-Year NAD Retrospective: The Levine Legacy," an ABA program honoring Andrea Levine, on the occasion of her retirement as Director of NAD. With NAD transitioning to new (as yet unnamed) leadership, we thought it would be a good time to review some of the best practices that guide NAD practitioners every day.
July 10 2017