Nail Polish Claims Should Be Wiped Off, NARB Recommends

Advertising Law

The National Advertising Review Board (NARB) polished up a National Advertising Division (NAD) decision recommending that Coty Inc. discontinue claims for its Sally Hansen Miracle Gel Nail Polish.

Regular enamel nail polishes harden through the evaporation of solvent in the polish, but gel nail polishes harden through a different chemical process that typically involves curing each layer of the polish under a UV or LED lamp at a salon. Coty’s advertising positioned Miracle Gel as a gel nail polish that can be cured without a lamp. Competitor Revlon Consumer Products challenged a host of claims made by Coty, including that users “get up to 14 days of color & shine” and descriptions of the polish as a “no light gel” or “gel without the light.”

The NAD, in recommending that the claims be discontinued, determined the advertising reasonably conveyed a message that consumers who use Miracle Gel can achieve benefits that are equivalent or substantially similar to those of a salon gel manicure.

On appeal, the NARB—stepping into the shoes of reasonable consumers, since neither party provided a consumer perception study—said it did not believe that simply referring to Miracle Gel as a “no light gel” or “gel without a light” conveyed a message that the polish provides benefits substantially similar to those of a salon gel manicure.

“However, the panel believes that in the context of advertisements claiming Miracle Gel provides up to 14 days of color and shine, or making more limited claims that raise the possibility of lasting color and shine for up to 14 days, the description of Miracle Gel as a ‘no light gel’ or ‘gel without a light’ reasonably conveys a message that Miracle Gel provides some benefits (i.e., long-lasting color and shine) that are substantially similar to the benefits of a salon gel manicure.” The panel’s finding is based in part on its determination that 14 days represents a reasonable consumer expectation for how long a salon gel manicure will last.

The panel rejected Coty’s contention that any message that a home gel nail polish provides benefits similar to a salon gel manicure would be puffery, and noted that salon manicures involve extensive nail preparation that impacts the overall quality of the manicure. “The panel is not convinced by Coty’s argument that the terms ‘no light gel’ and ‘gel without a light’ do nothing more than identify the category of nail polish,” the NARB explained. “When combined with [the] additional claim that promises color and shine over an extended time period, these terms reasonably convey a message that Miracle Gel will provide some benefits that are substantially similar to a salon gel manicure. The record in this case does not demonstrate a reasonable basis in support of this message.”

Turning to the “up to 14 days” claim, a majority of the panel found that it reasonably conveyed a message of long-lasting color and shine—a message that was not backed by any consumer testing that would establish that an appreciable number of consumers would receive this maximum benefit over a 14-day period.

The panel does, however, “believe that the record supports a more limited claim that Miracle Gel ‘can’ or ‘may’ (or similar terms) provide up to 14 days of color and shine, as long as the claim is made in a context that does not reasonably imply consumers will receive long-lasting color/shine or other benefits similar to what is achieved with a salon gel manicure.”

Coty scored a limited victory when the NARB agreed there was no need to discontinue or modify the Miracle Gel name, given the absence of consumer confusion.

To read the NARB’s press release about the case, click here.

Why it matters: Stepping into the salon chair of consumers, the NARB found that the advertisements reasonably conveyed an unsupported message that Miracle Gel provides benefits similar to those achieved with a salon gel manicure, and the NARB recommended these advertisements be discontinued. Coty did avoid having to change the product name, however, as the NARB panel believed the Miracle Gel name did not convey a false or misleading message and that consumers would reasonably view the product as a gel nail polish.

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