The National Advertising Division of the Better Business Bureau (NAD) recently initiated an inquiry into a mascara advertisement featuring Taylor Swift, which resulted in the discontinuance of the advertisement. The proceeding, involving Procter & Gamble, was initiated as part of the NAD's ongoing monitoring program and cited misleading express and implied claims and unacceptable disclaimers as a cause for concern. In response, Procter & Gamble agreed to pull the print advertisement.

The advertisement that was the subject of the NAD's inquiry involved a mascara product and featured famed country singer Taylor Swift. The NAD cited several express claims, including "2X more volume," "20% lighter," and a demonstration of the product's performance, as misleading. Accompanying these claims were disclaimers clarifying that the "volume" claim was a comparison to bare lashes and the "lighter" claim was a comparison to "the most expensive mascara." The implied claim was that the advertised mascara would cause an average consumer's eyelashes to look like those pictured and that the advertisement did not involve any post-production enhancements. In fact, however, the eyelashes displayed in the ad involved post-production airbrushing to make them appear fuller.

The NAD is a branch of the Better Business Bureau. It reviews national advertisements and offers a low-cost forum to resolve advertising disputes. Although its decisions are not binding, many advertisers choose to comply with the NAD's decisions as such decisions may carry weight with the Federal Trade Commission, the agency to which the NAD may refer a case in which an advertiser refuses to cooperate.

While this is one of the first mascara advertisements pulled in the US, the UK Advertising Standards Authority (ASA) has been more active in this area. The NAD referred to the actions taken in the UK as support for its assertion that enhancements are misleading. For example, the ASA has had similar mascara advertisements pulled, such as one for Rimmel that included a barely visible disclaimer disclosing the use of false lashes to promote mascara. Likewise, it recently recommended that a Lancôme makeup foundation advertisement featuring Julia Roberts be discontinued for falsely suggesting that the product could instantly smooth complexions despite the use of post-production airbrushing.

This recent NAD action should stand as a sign to advertisers that the information conveyed in marketing materials must be accurate and both the express and implied claims will be considered. Even the use of airbrushing can create an implied claim that must not mislead consumers. In addition to complaints from consumers or competitors, the NAD itself may independently investigate misleading claims.

Arent Fox is continuing to monitor developments in the advertising industry. Please contact Anthony V. Lupo, Sarah L. Bruno, or Eva J. Pulliam with questions.