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 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 (The Higher Lifestyle, 4 January 2012; Radicalabsdirect.net, 20 July 2011; Lifes2good UK Ltd, 18 May 2011; Tony Ferguson UK Ltd, 27 April 2011; The Harley Medical Group Ltd, 24 November 2010; Intra Med Ltd, t/a Health Solutions, 27 October 2010; Gymophobics (Licence) Ltd, 6 August 2008; Age Technology, 5 March 2008; Phyto Nature Source, 25 October 2006; CAT Industries Ltd t/a Skin Doctors, 10 November 2004, and Windsor Group, 17 March 2004).
In March 2013 the ASA upheld a complaint about an ad for Ultherapy which included before photographs featuring consumers who clearly had sagging skin under their eye area, and after photographs which showed this to have been significantly reduced. Because the advertiser was unable to supply signed and dated proof that the photos in the ad were genuine and had not been manipulated, the ad was considered misleading (Lamphall Ltd, 20 March 2013). Similarly, the ASA ruled on an ad for an eye lifting gel which featured a photograph of a woman’s face, before and after “30 seconds” because it had not seen sufficient evidence that the image accurately represented the effect the product could achieve after 30 seconds. (Transformulas International Ltd, 16 January 2013).
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 (EF Medispa, 20 February 2013, Love Me Ltd, 4 January 2012). 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. One marketer showed that their before and after photos were genuine but did not provide a robust body of evidence to substantiate the level of efficacy implied by the photos. (BuyCosmetics.com, 25 January 2006).
The use of production techniques in cosmetic advertising
CAP issued a Help Note in April 2011 because ‘before’ and ‘after’ images are frequently used in cosmetic advertising. The Help Note, entitled “Cosmetic advertising: Use of production techniques in cosmetics advertising”, 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 techniques (Johnson & Johnson Ltd, 6 January 2010); the use of lash inserts that are longer or thicker than the model’s natural lashes (Coty UK Ltd t\a Rimmel London, 24 November 2010, L’Oreal (UK) Ltd, 25 July 2007); 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 (L’Oreal (UK) Ltd t/a Maybelline, 27 July 2011; Procter & Gamble (Health & Beauty Care) Ltd, 16 December 2009); the excessive use of hair extensions or inserts that significantly add to hair volume in hair care advertisements (L’Oreal (UK) Ltd, 2 June 2010); 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 (Parfums Christian Dior (UK) Ltd, 24 October 2012, L’Oreal (UK) Ltd t/a Lancome, 27 July 2011).
In 2012 the ASA did not uphold a complaint which challenged whether the before and after photographs in the ad were representative of the results a skin serum could achieve, as the styling and photographic pre-production techniques used for the "after" photographs did not differ from those used for the "before" photos, and post-production techniques had not been used to achieve the effect of "instant luminosity" as stated in the ad. (L'Oréal (UK) Ltd, 5 December 2012). See Cosmetics: The use of production techniques.
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 Lifeline Ltd, 26 November 2001). 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. Sometimes the mischief is more subtle and effectiveness can merely be implied.
Marketers quoting or using visual techniques to show “before” and “after” prices should be familiar with the Department for Business, Innovation and Skills’ Pricing Practices Guide, as the ASA will take this into account when reviewing price indications. See Pricing.