Advertising Law Alerts

March 18th, 2014

Make Sure Your Product Demonstrations Are Not Misleading

The FTC and The National Advertising Division of the Better Business Bureau ("NAD") have recently challenged three product demonstrations by major brands, finding that they were misleading to consumers. Here is a rundown of these important regulatory (and self-regulatory) developments:

  • Nissan (January 2014): Nissan North America Inc. ("Nissan") and its advertising agency, TBWA Worldwide, recently agreed to settle FTC charges that a Nissan television ad deceptively demonstrated the capabilities of the Nissan Frontier truck. The commercial featured the truck driving up a steep sand hill, pushing a dune buggy up the steep incline along with it. In reality, the truck and the dune buggy were pulled up the incline with cables and the hill was shot in a way to appear steeper than it actually was. The FTC in its first product demonstration case in quite awhile, alleged in its complaint that the demonstration misrepresented how the Frontier would actually perform and was thus false or misleading. Significantly, the FTC did not think that the disclaimer "fictionalization" at the beginning of the ad was effective in correcting the impression that the Nissan pickup was performing as it typically could.
  • L'Oréal (September 2013): The National Advertising Division of the Better Business Bureau ("NAD") inquired about claims made by L'Oréal USA Inc. ("L'Oréal") about the performance of its Rocket mascara. The ads, which touted the mascara's ability to intensify lashes, featured photographs of models whose lashes were enhanced with inserts. A disclaimer at the bottom of the ad stated: "lashes styled with inserts." Although the NAD determined that the express product claims were substantiated, it found that, the model's fake lashes in combination with these claims amounted to a false product demonstration capable of deceiving consumers as to the product's actual performance.
  • Covergirl (September 2013): In a very similar case, the NAD investigated claims made by The Procter & Gamble Company ("P&G") for its Covergirl Clump Crusher mascara. The NAD determined that although P&G had a reasonable basis for its express performance claims (e.g., "200% more volume"). However, because the image of the model shown was not an accurate depiction of the volume that could be achieved by applying the mascara alone (her eyelashes were artificially enhanced with fake lashes), the NAD found the demonstration to be  literally false. Notably, these ads also included a tiny disclaimer at the bottom of the page that stated "lashes styled with lash inserts."These cases should serve as an important reminder to brands and their agencies that (1) a product demonstration must accurately depict how the product performs and (2) adding a legal disclaimer to an otherwise misleading demonstration - particularly a disclosure  that is not clear and conspicuous --  does not cure the potential regulatory problem.

For more information on product demonstrations, or any other advertising or marketing law issues, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, Claudine Wilson at (212) 705 4842 or cwilson@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group