Is the Disclaimer Going the Way of 8-Track Tapes?8 Oct, 2013 By: Randal M. Shaheen, Amy Ralph Mudge, Venable L.L.P.
The Federal Trade Commission’s (FTC) recent revision of the Dot-com Disclosure guidance certainly upped the ante when it comes to the use of disclaimers. The FTC reiterated – and in some instances – revised its guidance with respect to the prominence and clarity of disclaimers and the use and labeling of hyperlinks. The FTC also indicated that in some instances the qualifying information should appear in the text of the ad itself rather than in a disclaimer.
The National Advertising Division (NAD) reaffirmed this last point – that sometimes information has to appear in the ad rather than a disclaimer – in a recent decision, now on appeal, involving L’Oreal. The challenged advertisement involved a mascara product that L’Oreal claimed made lashes eight times bigger. NAD agreed that the claim was substantiated. However, it took issue with the model used in the ad because she was also wearing lash inserts.
L’Oreal asserted, and NAD agreed, that the inserts did not increase the length of the lashes beyond what could be achieved by use of the mascara. Rather, in one instance the inserts were used to replace missing or damaged lashes (an occupational hazard of models who have heavy makeup frequently applied and removed). In the other instance, the inserts were used to increase the natural lash count and create a more dramatic look.
NAD did not take issue with the former use of lash inserts (merely to replace what nature had originally provided) but viewed the latter as artificial enhancement of a product demonstration. In other words, if you are going to advertise the benefits of your cosmetic product and show that benefit visually you cannot use artificial means to enhance the effect. NAD noted that they were not otherwise trying to prevent the use of beautiful models, great lighting or expert styling.
With regard to disclaimers, L’Oreal used a disclaimer that stated “lashes styled with lash inserts.” NAD concluded that it was not appropriate to convey this information in a disclaimer because it contradicted the main message of the ad – which was that the picture depicted how the model’s lashes looked solely through use of the mascara. NAD said if L’Oreal wanted to continue using lash inserts then 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.
While the principle cited by NAD – that a disclaimer cannot contradict the claim that it purports to clarify – is a longstanding one, NAD’s use of that principle here arguably represents a more aggressive and expansive view of “contradicts.” Companies wishing to use disclaimers may want to take a hard look at the relationship between the advertising claim and disclaimer in light of this NAD decision and recent FTC guidance.
Amy Ralph Mudge and Randall M. Shaheen are partners in Venable LLP’s Advertising, Marketing and New Media Group. They can be reached at (202) 344-4000.