Advertising Law Blog

Specifically, Benefit asserted that Too Faced exaggerated its claims that its Better Than Sex mascaras will result in “1,944% more volume.” Further, the challenger argued that the test procedures and results submitted by the advertiser in support of its advertising claims were overly redacted so as to limit the challenger’s ability to assess the trustworthiness of the relied upon testing procedures and outcomes. Benefit also argued that the “Before” and “After” comparative demonstrations that appear on the product packaging, YouTube and HSN videos have been “artificially enhanced.” The “before” photo showed a woman’s eyelashes without any mascara, and the “after” photo depicted the woman’s lashes that appear to have greater volume, length, and definition.

With regard to the advertiser’s “1,944% more volume” claim, NAD highlighted the difficulties associated with the advertiser’s submission of confidential documents related to the advertiser’s testing procedures and outcomes. Although acknowledging the advertiser’s desire to protect trade secrets that may be contained within the testing documents, NAD stated that because the opposing party was prevented from reviewing the documents, NAD could not entirely rely on the credibility of this evidence. NAD did discuss some aspects of the advertiser’s testing methodology outlined in the confidential documents, finding the testing to inadequately support the advertising claims. NAD concluded that the testing did not satisfactorily support the challenged claim, and therefore recommended that the “1,944% more volume” claim be discontinued.

With regard to the “before” and “after” photos, NAD again found that the comparative representations were unsupported by the advertiser’s cited product performance testing procedures. Although NAD noted that neither the use of a professional make-up artist nor the application of three coats of mascara necessarily results in an artificially altered “after” photo, NAD concluded that the testing procedures and outcomes did not sufficiently support the advertiser’s claims, and again recommended that the advertiser discontinue use of its “before” and “after” images.

Believing that NAD reached an incorrect conclusion, the advertiser has submitted the matter for NARB review on appeal.

TAKEAWAY: Although NAD participants are permitted to submit materials to NAD related to trade secrets and/or proprietary information with a request that the information not be made available to the challenger, this case reflects the potential disadvantage such a request may have on a party. Here, the advertiser’s choice to protect its testing procedures from the gaze of its competitor challenger resulted in NAD affording less weight to the information submitted, ultimately contributing to NAD’s recommendation that the advertiser discontinue the claims at issue.