NAD Turns Down Mascara’s ‘1,944% More Volume’ Claim

Advertising Law

Claims for “1,944% more volume!” and accompanying “Before” and “After” photographs should be discontinued, the National Advertising Division advised Too Faced Cosmetics after reviewing the advertising for its Better Than Sex (BTS) mascara line in a challenge brought by competitor Benefit Cosmetics.

To substantiate the claim and pictures—which appeared on product packaging and in online videos—the advertiser provided the NAD with confidential testing conducted in 2013 and 2015 by an independent laboratory.

In both studies, human lashes were coated with three coats of BTS mascara and objective measurements were taken using a digital caliper/micrometer at baseline and after each successive coat. According to the test results, following each coating, the mean volume showed a statistically significant increase over the prior mean, and after three coats, the mean lash volume increased 1,944 percent as compared with the mean volume at baseline.

The photographs labeled “Before” and “After” were placed directly beneath the “1,944% more volume” claim. The “Before” image depicted a woman’s short, sparse eyelashes devoid of any mascara, while the “After” photograph showed “dramatically transformed” lashes that appeared lengthier, well-defined and much more voluminous. To support the pictures, Too Faced submitted an affidavit from the company’s president explaining that the woman featured in the images was an employee who had her mascara applied by a professional makeup artist and that the pictures were not artificially enhanced in any way.

Benefit questioned the testing procedures and results and asserted the photographs misrepresented the mascara’s efficacy.

The NAD began with the “1,944% more volume” claim, noting that Too Faced provided “minimal information” about the test methodology and results. “While NAD understands that advertisers can be disadvantaged if competitors have access to proprietary or highly sensitive material, NAD is at a distinct disadvantage when the challenger is unable to review and critique the methodology and results of the tests at issue,” according to the decision.

In addition to the confidentiality concerns, the self-regulatory body was “troubled” by the advertiser’s test methodology. Too Faced provided limited evidence concerning whether a micrometer was an accepted and recognized tool to measure eyelash volume, relying upon “unpersuasive” evidence such as a chemistry textbook and a definition in a Food and Drug Administration regulation, both of which referenced skeletal specimens.

The references seemed “to have little in common with the thinness and flexibility of a single eyelash,” the NAD wrote, and “such evidence is inadequate to establish that the tool is generally accepted in the cosmetic industry and an appropriate device for this particular purpose.”

The NAD also found problems with the consumer relevance of the test methodology and results. The manner in which the tested lashes were arranged lacked consumer relevance and the sufficiency of the number of lashes tested remained unclear. “[A]n insufficient sample size can, in fact, lead to statistically significant results that are unreliable and difficult to generalize to a broader population,” the NAD said, adding that it was unable to duplicate the results when it attempted to confirm the test findings.

“Ultimately, NAD’s concerns with the advertiser’s laboratory test methodology, combined with the challenger’s limited ability to review and critique the advertiser’s confidential testing, led NAD to conclude that the testing was insufficiently reliable to support the challenged claim,” the NAD wrote. “Consequently, NAD found there was no reasonable basis to support the ‘1,944% more volume’ claim and recommended the claim be discontinued.”

Turning to the “Before” and “After” photographs, the NAD found the performance claims were not supported, accurate or representative of the level of product efficacy that a reasonable consumer could expect to achieve. An affidavit is generally not considered to be proof of product performance, the NAD said.

“[T]he advertiser’s ‘before’ and ‘after’ images reasonably convey a message that consumers using the product will achieve similar eyelash volume when they apply the product according to its use instructions,” the NAD wrote. “Without reliable evidence in the record demonstrating the volume consumers can expect to achieve when applying BTS Mascaras, NAD concluded that the performance message conveyed by the advertiser’s ‘before’ and ‘after’ images was not supported.”

In its advertiser’s statement, Too Faced said that “NAD reached the wrong results” and announced its intention to appeal the recommendation to discontinue both the “1,944% more volume” and photograph claims to the National Advertising Review Board.

To read the NAD’s press release about the decision, click here.

Why it matters: The NAD had several problems with the test results provided by the advertiser, from the minimal information about test methodology and results to the limited evidence that measurements using a micrometer are an accepted and recognized tool to measure eyelash volume. This lack of support for the “1,944% more volume” claim carried over into the analysis of the “Before” and “After” photographs, which the NAD found were unsupported product performance claims.