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.
Following a tightening up in position on the use of pre and post-production techniques in cosmetics advertising, CAP issued guidance in the form of a Help Note entitled “Cosmetic advertising: use of production techniques in cosmetics advertising”.
This guidance covers three areas:
• Pre-production techniques such as styling, make-up, eyelash inserts and hair extensions;
• Post-production techniques such as re-touching of photographic images using digital or
other technology; and
• Qualifications or disclaimers such as superimposed text.
The focus of this Help Note is that advertised claims (including visual claims) should not misleadingly exaggerate the effect the product is capable of achieving (L'Oréal (UK) Ltd, 15 February 2012) For example, lash inserts should not be used to do more than replace damaged or missing lashes, or to create a lengthening or volumising effect beyond what can be achieved by the mascara on the model’s natural lashes, (Coty UK Ltd t/a Rimmel London, 24 November 2010).
In the past the ASA has not upheld complaints for mascara products, where lash inserts were used in order to achieve a uniform lash-line effect and where post production techniques had not been used to alter the length of the lashes (L'Oreal (UK) Ltd, 23 November 2011, L’Oreal (UK) Ltd, 12 May 2010)
General “airbrushing” in ads is likely to be acceptable, provided that this does not imply that the specifically claimed effect of the product is actually achievable in real use, where post-production techniques have been used to enhance the “after” effect of the product.
The Help Note also considers the use of “before” and “after” images where only the “after” image had used pre-production techniques (Johnson & Johnson Ltd, 6 January 2010). It also considers 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 and Procter & Gamble (Health & Beauty Care) Ltd, 16 December 2009), and the excessive use of hair extensions or inserts that significantly added to hair volume in hair care advertisements (L’Oreal (UK) Ltd, 2 June 2010).
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 because 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). The aim is not to prevent the use of glamorous images in advertising for cosmetics, and consumers are likely to expect a degree of glamour in images for beauty products. The ASA acknowledges that advertisers are keen to present their products in a positive light using techniques such as pre-production enhancement and the post-retouching of images. This approach is, of course, acceptable providing the resulting effect is not one which misleadingly exaggerates the effect the products are capable of achieving (Clinique Laboratories Ltd, 16 October 2013, Beiersdorf UK Ltd, 28 August 2013, L’Oreal (UK) Ltd, 1 February, 2012).
In 2012 the ASA upheld a complaint for a mascara ad featuring Natalie Portman which stated, “Dior Show New Look...Lash-multiplying effect volume...It delivers spectacular volume-multiplying effect, lash by lash” because it had not seen sufficient evidence to show that the post-production retouching on Natalie Portman's lashes in the ad did not exaggerate the likely effects of the product and because post-production retouching was applied on the eye lashes, an area which was directly relevant to the performance of the product.
Marketers should ensure that the before and after photographs that they hold as evidence relate to the image shown in the ad because in the absence of the ASA being able to assess any post-production work on the model featured, the ASA may well consider the ad misleading (Parfums Christian Dior (UK) Ltd, 24 October 2012)
Whilst the ASA accepts sensory claims for moisturisers for example, “skin feels firmer, smoother, more toned” visual claims which refer to the visible effects of the product are likely be considered capable of assessment in terms of whether the resulting effect exaggerates what the product can realistically achieve.
A complaint about an ad for a moisturiser featuring Rachel Weisz was upheld by the ASA because it considered that the claims “skin looks smoother” and “complexion looks more even” were misleading because the image had been substantially altered, and exaggerated the performance of the product. (L'Oréal (UK) Ltd, 1 February 2012)
The ASA did not rule against one ad which stated “Get flawless skin...without additional makeup without procedures without photo retouching” and featured an image of one half of a model’s face labelled “untreated” and the other half labelled “treated (in 40 seconds)”. Because the image had not been digitally manipulated and had been taken immediately after application of the product, the ASA was satisfied that the photo did not mislead as to the effects the product was capable of achieving. (Indeed Laboratories Inc, 15 May 2013).
A complaint about an ad for an electric nail buffer, which stated, “Say hello to naturally beautiful, shiny nails” was upheld because the editing techniques used were directly relevant to the claimed ability of the product to produce shiny nails. Notably, production techniques had been used to brighten the colour of the nail, to whiten the nail tip, to neaten the reflection line and to tidy the boundary of the nail bed. Furthermore, the before and after images were particularly likely to indicate to consumers that these were the results they could expect to achieve (Lifes2good UK Ltd, 24 December 2014).
Small print and qualifications
Marketers should not use superimposed qualifications or disclaimers as a “carte blanche” to excuse otherwise disallowed activities or impressions. If the advertisement is inherently misleading, it remains so regardless of any superimposed disclaimer or qualifier. Marketers should ensure that the size and positioning of any important clarificatory text is appropriately placed to catch a reader’s attention. Ideally, the text should be printed horizontally as opposed to vertically (Coty UK Ltd, 24 November 2010). See small print and footnotes.