Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers, especially those in the health and beauty sectors, often use ‘before and after’ photos of subjects to provide a visual representation of the effectiveness of their products. Commonly, this technique is used to demonstrate the efficacy of slimming products, diet regimes, cosmetic products (for example, mascara and foundation) and hair loss treatments. Such photos are not confined exclusively to the health and beauty sectors - some marketers have used them to demonstrate price reductions, or even the efficacy of devices to remove scale from pipes.
Exaggerating the efficacy of a product
The ASA has upheld many complaints about the use of ‘before and after’ photos that exaggerate the efficacy of a product.
In 2018, the ASA upheld a complaint about ads for laser acne and rosacea treatment, after the advertisers could not substantiate the ‘before and after’ imagery. The advertiser confirmed that these images were not of their own customers, but were indicative of the results one could achieve from the treatments. However, they had no proof that these images were genuine, nor did they hold evidence that these images were representative of the effect consumers could likely expect (The Laser Treatment Clinic Ltd, 22 August 2018).
Similarly, in 2019 the ASA investigated images for a teeth-whitening product, and whether the images represented what customers could genuinely achieve after one use. Despite the advertiser submitting clinical trials and customer testimonials, the ASA concluded that the full body of evidence was not sufficient to substantiate the claims in the ad that the product had a perceptible whitening effect on teeth which could be seen after the first use of the product (Smiles Powder UK Ltd, 29 May 2019).
Conversely, the ASA has also investigated ads where the advertiser was able to substantiate the efficacy of their product as demonstrated in their photographs – see The Perfect Cosmetics Company Ltd, 7 September 2016 and L'Oréal (UK) Ltd, 20 June 2018 for two examples. Marketers specifically looking for guidance on the level of substantiation needed for health, beauty and slimming claims are urged to read this guidance.
Holding signed and dated proof
CAP and the ASA regard the use of ‘before and after’ photos in the same way as testimonials, and marketers should therefore ensure that they meet the requirements of rules 3.45 to 3.48 of the CAP Code. They should hold signed and dated proof that the photos are genuine and have not been manipulated (The Dental Suite, 13 December 2017, EF Medispa, 20 February 2013). The photos should not exaggerate the efficacy of the product and marketers need to ensure that they have relevant evidence to substantiate the impression created by the images.
The use of production techniques in cosmetic advertising
CAP has included detailed guidance about ‘before and after’ imagery in their Advertising Guidance entitled “Cosmetic advertising: Use of production techniques in cosmetics advertising”. This guidance offers greater clarification on the use of pre- and post- production techniques in cosmetic ads and the ways in which they can mislead. It discusses, for example: ‘before and after’ images where only the ‘after’ image had used pre-production; the use of lash inserts that are longer or thicker than the model’s natural lashes; re-touching related to any characteristics directly relevant to the apparent performance of the product (for example, removing or reducing the appearance of lines and wrinkles around the eyes for an eye cream advertisement); the excessive use of hair extensions or inserts that significantly add to hair volume in hair care advertisements and so on.
The main message here is that advertising claims (including visual claims) should not mislead by exaggerating the effect the product is capable of achieving. Marketers should ensure they retain appropriate material to be able to demonstrate whether any re-touching has been carried out, in the event of an investigation.
Health claims, medical devices and prescription-only medicines
‘Before and after’ imagery has become perhaps more prevalent in recent years due to social media. Marketers looking to use ‘before and after imagery’ for medical devices (such as weight loss apparatus, lasers, circulation boosters etc.), health products (such as slimming teas, food supplements etc.) and prescription-only medicines (Botox, Azzalure, Dysport etc.) are reminded that there are many other rules that accompany the advertising of their product.
Marketers looking to use ‘before and after’ imagery of medical devices are reminded that in the first instance, their product should be appropriately classified. See Health: Medical Devices.
Advertisers of prescription-only medicines (including products such as Botox) are reminded that, in line with rule 12.12, prescription-only medicines are not allowed to be advertised to the public. ‘Before and after’ imagery of a prescription-only product, even in isolation without any accompanying claims, is very likely to be seen as an implied ad for a prescription-only product, and therefore a breach of the aforementioned rule. See Prescription-only medicines and Botox for more information.
Marketers for slimming teas, food supplements and similar are reminded that any slimming or health claims, whether implied through ‘before and after’ imagery or stated plainly, need to be authorised (Source Ltd, 7 February 2018). See Food: General Health Claims for more information.
When using ‘before and after’ images of subjects who have undertaken a diet or exercise plan, marketers should be careful not to imply that they can offer treatment for obesity by showing “before” images of obese subjects, unless the plan is supervised by a suitably qualified health professional.
Obesity is frequently associated with medical conditions - rule 12.2 states that marketers must not discourage essential treatment for which medical supervision should be sought. See Weight control: Obesity and Weight control: Testimonials.
Small print and qualifications
The use of superimposed text should be used for clarification. Marketers should not use superimposed qualifications or disclaimers as carte blanche to excuse otherwise disallowed activities or impressions. If the advertisement is inherently misleading, it remains so regardless of any superimposed disclaimer or qualification. See Small print and footnotes.
Marketers do not have to label photographs explicitly as “before” and “after” to mislead readers about the effect of the product, and these are likely to be considered implied efficacy claims.