The use in cosmetic ad production of hair inserts, false eyelashes and post production techniques such as re-touching has come up in recent cases before the Advertising Standards Authority. Now the Committee of Advertising Practice has published Guidance on when these techniques might overstep the mark as Mark Smith reports.
Topic: Health and beauty
Who: Committee of Advertising Practice ("CAP")
When: April 2011
Where: United Kingdom
Law stated as at: 5 May 2011
What happened:
CAP has issued a brand new Help Note on the use of production techniques in cosmetics advertising following a plethora of recent cases before the Advertising Standards Authority ("ASA") relating to hair inserts, false eyelashes and post production techniques such as re-touching. The Help Note covers both broadcast and non-broadcast advertising.
The Help Note covers three main 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 technologies.
- Qualifications or disclaimers such as super-imposed text.
Pre-production
CAP suggests that the use of pre-production techniques such as styling, make-up, lash inserts, hair extensions and such like will be acceptable without explicit disclosure so long as they do not mislead. It provides the following examples of instances where the use of pre-production techniques could be misleading:
- "Before-and-after" images where only the "after" image has used pre-production techniques, or the use of different techniques in a series of images showing graded effects.
- Using lash inserts longer or thicker than the model's natural eyelashes or that do more than replace damaged or missing lashes, unless it can be shown that the effect illustrated is achievable on the natural unadorned eyelash.
- Excessive use of hair extensions or inserts that significantly add volume in hair care advertisements, unless it can be demonstrated that the effect shown is achievable on natural hair.
- Using false or artificial nails in advertisements for nail care products where the benefit claimed is other than purely decorative (e.g. claims relating to nail strength, length and shape).
The Help Note suggests that the use of styling and make-up generally, the use of lash inserts in ads for non-eye area cosmetics, the use of hair extensions and inserts in ads for non-hair care cosmetics and the use of false or artificial nails for coloured nail cosmetics where the effect is achievable on natural nails, will be unlikely to mislead consumers.
Post-production
CAP has indicated that the re-touching of photographs requires particular attention to avoid misleading consumers, and that advertisers should ensure that they retain appropriate evidence to show what re-touching has been carried out in the event of an ASA investigation. This might include "before" as well as "after" images to illustrate the pre- and post-production techniques used.
The Help Note lists the following examples of practices which are likely to mislead:
- Re-touching related to any characteristics directly relevant to the apparent performance of the product being advertised, such as removing or reducing the appearance of lines and wrinkles around the eyes for an eye cream advertisement or increasing the length and thickness of eyelashes in an advertisement for mascara.
- Adding shine and highlights to hair for a product claiming to produce shiny hair.
- Removing hair "fly-aways" for a product for fly-away hair.
Minor adjustments to correct for lighting problems and other photographic issues, provided the image produced reflects the model, and the removal of skin blemishes, so long as this does not affect the impression given of the effectiveness of the product, are unlikely to mislead. Similarly, removal of a few hair "fly-aways" will be acceptable, even in advertisements for hair care products, unless they are products for fly-away hair (as mentioned above).
Qualifications and disclaimers
It is important to remember that the use of superimposed text is not a "get out of jail free" pass that excuses otherwise disallowed impressions or activities. Where a cosmetics ad is inherently misleading, it remains so regardless of any superimposed disclaimer or text, and if it is inherently truthful, there is no need for such text.
Nonetheless, CAP recognises that there are instances where superimposed text can provide useful clarification and so advertisers are allowed to include them. Any such disclaimers must be clearly legible and appropriately placed.
Why this matters:
The area of cosmetics advertising has been the subject of a number of high profile ASA cases in the past couple of years, and this new guidance on production techniques and disclaimers is therefore to be welcomed.
However, it is worth noting that CAP is keen to stress that the Help Note is not intended to stifle innovation in cosmetics advertising, and that marketers are welcome to depart from the guidance, provided that in the event of an ASA investigation they can justify why they did so and why the advertisement does not mislead as a result.
