NARB Panel Finds Mascara Ad is Not ‘Literally False’ if Use of Lash Inserts is Appropriately Disclosed; Recommends L’Oreal Modify Disclaimer for ‘Rocket’ Mascara

New York, NY – March 20, 2014 – A five-member panel of the National Advertising Review Board (NARB) has determined that photographs accompanying mascara advertising by L’Oréal USA, Inc., are not “literally false” if the model’s use of lash inserts is appropriately disclosed to consumers and the photograph accurately shows the effect of the advertised mascara on the model’s eyelashes – both real and inserted.

Further, the panel noted in its decision that it does not believe that a lash-inserts disclaimer contradicts either the main message of the advertisement or the message that the photograph of the model shows the degree to which L’Oreal’s Rocket mascara increases eyelash volume or thickness. A statement that some of the model’s eyelashes are lash inserts, the panel found, is not inconsistent with a message that the photograph shows the increased volume/thickness resulting from application of the advertised mascara to whatever eyelashes (real or inserted) the model has.

NARB is the appellate unit of the advertising industry’s system of self-regulation.

As part of its ongoing monitoring program, the National Advertising Division (NAD),
inquired about claims made by L’Oréal for its Maybelline “the Rocket Volum’ Express Mascara” and L’Oréal “Paris Telescopic Shocking Extensions Mascara.”

NAD is an investigative unit of the advertising industry’s system of self-regulation, administered by the Council of Better Business Bureaus.

Challenged claims, made in print advertising and at L’Oréal’s website included:

Express claims for Rocket mascara

•  “8X Bigger, Smoother, Even.”
•  “Our Patented Supersonic Jumbo Brush with Micro Bristles.”
•  “Loads on Big, Sleek Volume Instantly. Our Fast-Glide Formula Keeps Lashes Smooth, Even.”

Express claims for Telescopic mascara

•  “Ready for a shock? L’Oréal Introduces Liquid Lash Extensions.”
•  “Length + Impact Without Extensions. Now surround lashes base to tip for the high-impact look of extensions from mascara.”
•  “Incredible design: The lash-hugging brush is contoured with 200 bristles to intensify every lash.”

NAD also considered whether the following implied claims were made by the combination of the photograph and express performance claims in the advertisement:

•  Consumers who use the mascara will get lashes like those depicted in the photograph of the model.
•  The lashes depicted in the photograph of the model were achieved solely by using the promoted mascara.

NAD recommended that L’Oréal discontinue use of artificial lash enhancements in the Rocket advertisement’s photograph or make clear in the main message that the image depicts the volume achieved when Rocket mascara is used together with lash inserts. NAD also cautioned L’Oréal against the use of artificial lash enhancements in future advertising for Telescopic mascara unless it clearly disclosed, as part of the main claim of the advertisement, that the model’s lashes were artificially enhanced. L’Oreal appealed both findings to the NARB.

The NARB panel noted in its decision that it “does not believe that a lash insert disclaimer must necessarily be part of the ‘main message’ or ‘main claim’ of the advertisement” as NAD recommended. “The panel believes that, with respect to the challenged advertisement, L’Oréal should have discretion to determine where and how such information is included in the advertisement as long as the result is that the information is clear and conspicuous to consumers.”

Regarding the Rocket advertising at issue, the panel recommended that L’Oréal “modify the challenged advertisement for Rocket mascara by making a clearer and more conspicuous disclosure that the model’s eyelashes are enhanced with lash inserts.”

Further, the panel noted, its disagreed with NAD’s caution on future advertising for Telescopic mascara “to the extent that it sets out a hard-and-fast rule eliminating the possibility that a clear and conspicuous disclaimer could be used to inform consumers that a model’s eyelashes have been enhanced with lash inserts. Consideration of the messages reasonably conveyed by a model’s photograph would necessarily need to be made in the context of the entire advertisement in which the model’s photograph appears.”

Finally, NAD determined that L’Oréal provided a reasonable basis for the express claims made with respect to Rocket mascara and its brush and found that the claim “Ready for a shock? L’Oréal Introduces Liquid Lash Extensions” would be understood by consumers as puffery. NAD also found that L’Oréal provided a reasonable basis for the express claims made with respect to Telescopic mascara and its brush.

L’Oreal, in its advertiser’s statement, said it is pleased that the panel rejected NAD’s finding that the photograph in the Rocket mascara advertisement is a literally false product demonstration. L’Oreal also is pleased that the panel rejected NAD’s recommendations regarding future Rocket and Telescopic mascara advertising. With respect to the disclaimer in the Rocket ad, L’Oreal respectfully disagrees with some of the panel’s reasoning, however, we strongly support industry self-regulation and accept the panel’s recommendation.”