Disclaimer Danger

UnknownThe Federal Trade Commission’s (FTC) recent revision of the Dot-com Disclosure guidance document introduced some important changes concerning the prominence and clarity of disclaimers and hyperlinks, and also directed that qualifying information should appear in the text of the ad itself rather than in a disclaimer, at least in some circumstances.

This position was reinforced by the National Advertising Division (NAD) in a recent decision (now on appeal), involving L’Oreal. The case concerned an advertisement for a mascara product that L’Oreal claimed made lashes eight times bigger.  Even though the claim was adequately substantiated, the NAD took issue with the model used in the ad because she was also wearing lash inserts.

L’Oreal asserted that the inserts did not increase the length of the lashes beyond what could be achieved by use of the mascara (which the NAD found to be true). In one instance the inserts were used to replace missing or damaged lashes resulting from the necessity of frequently applying and removing the model’s makeup for photo shoots. Because they were used to replace the lush lashes the model originally sported, the NAD did not take issue with this reason for using the inserts. In the other instance, however, the inserts were used to increase the natural lash count and create a more dramatic look, and the NAD did take issue with this explanation, viewing it as an artificial enhancement of a product demonstration.

The ad also featured a disclaimer that stated “lashes styled with lash inserts.” The NAD concluded that it was not appropriate to convey this information in a disclaimer because it contradicted the main message of the ad – that the photo depicted how the model’s lashes looked as a result of using the mascara.  The NAD stated that if L’Oreal wanted to continue using lash inserts when advertising its mascara line, it must state in the main body of the ad that the picture depicted the volume that can be achieved with use of the mascara and lash inserts.

The principle cited by the NAD is a longstanding one addressed in several previous posts.  However, the application of that principle in this instance represents a far more aggressive and expansive view of the nature of contradiction, and companies considering the use of a disclaimer are well advised to take an equally expansive view of the disclaimer in light of the message of the ad. 

If your ad features the photo of a beautiful model, you need to think about what that photograph will convey to the average consumer who sees it.  For example, when advertising your tanning spray, consumers will naturally assume that your model acquired her rich, golden tan solely through use of the product, and not (God forbid) natural sun exposure.  If your model did have a natural tan before applying the spray, your disclaimer will need to directly reflect that fact (i.e., photo depicts the color that can be achieved with the use of the spray and natural sun exposure).

Fortunately, the NAD noted that they were not otherwise trying to prevent the use of beautiful models, great lighting or expert styling.


Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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