Advertising Law Blog

NARB, the appellate unit of the advertising industry’s system of self-regulation, reached this conclusion after Too Faced appealed consistent recommendations of the National Advertising Division of the Better Business Bureau (“NAD”).

This matter originated when competitor of Too Faced, Benefit Cosmetics, challenged the claims and images, asserting that the methodology and consumer relevance of the test did not sufficiently support the specific increased volume claims. Too Faced based its “1,944% more volume” claim on two laboratory tests. The NARB panel noted certain shortcomings in Too Faced’s reliance on the laboratory tests to support its claims, stating that the tests used only a small number of lashes, that the tool used for measuring the eyelashes was not generally accepted as being effective for such use, and that the record in the case failed to establish that a precisely quantified volume increase could reliably be calculated in the way in which the test methodology allowed. Additionally, the panel questioned the consumer relevance of the testing which did not replicate the application of mascara to human eyelashes on human eyelids. As such, the panel recommended that Too Faced discontinue use of the “1,944% more volume” claim.

With regard to the challenged “before” and “after” images that appeared directly below the “1,944% more volume” claim on the mascara packaging, the NARB panel confirmed the recommendations of NAD that the images should be discontinued.  The panel noted that the close proximity of the images to the claim reasonably conveys a message to consumers that the images are demonstrative of the unsupported increase in volume claim. Further, the panel noted that, as the record did not provide sufficient evidence to the contrary, it was concerned the “after” images may have been retouched or enhanced.

Following the recommendations of the panel, Too Faced stated that while it “strongly disagrees with NARB’s conclusions,” it will modify its packaging and advertising moving forward in accordance with NARB’s recommendations.

TAKEAWAY: Like the prior NAD decision, the NARB panel’s decision focused on the testing procedures relied on by Too Faced to support its claims, in terms of both reliability and consumer relevance. When making such specific claims in advertising, advertisers should ensure that their testing procedures are both scientifically reliable and relevant to the consumer experience in using the advertised product.