NARB Turns Down Mascara’s Volume Claims

by Manatt, Phelps & Phillips, LLP
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Manatt, Phelps & Phillips, LLP

Lacking evidence to back up “before” and “after” pictures and the statement “1,944% more volume,” Too Faced Cosmetics LLC should discontinue the claims it’s making about its Better Than Sex original and waterproof mascaras, the National Advertising Review Board (NARB) recommended.

Competitor Benefit Cosmetics challenged the claims and images, which were made on product packaging, Too Faced’s website and in videos appearing on YouTube and the Home Shopping Network.

Expressing concern about the advertiser’s test methodology and the consumer relevance of the test methodology and results, the National Advertising Division (NAD) advised Too Faced to discontinue the claims last year.

The advertiser appealed, and the NARB reached the same conclusion.

Too Faced based its “1,944% more volume” claim on two laboratory tests conducted by an independent clinic in 2013 and 2015. The lab tests used an adhesive lash strip of natural hair, although each strip contained fewer lashes than a typical eyelash.

Baseline measurements of the length and width of each lash were taken with a digital micrometer before three coats of the advertiser’s mascara were applied. After each coat, micrometer measurements were taken of the length and width of each lash. After the third coat, results showed a statistically significant mean lash volume increase of 1,944% for original mascara and over 18,000% for waterproof mascara, Too Faced said.

To start, the NARB questioned whether a digital micrometer is a reliable tool for measuring something as small and irregular in diameter as a human eyelash. The record showed that micrometers can be used to measure relatively small distances between hard surfaces, and the NAD has previously accepted micrometer measurements in claims relating to the thickness of paper towels and diapers.

“However, nothing in the record shows generally accepted use of micrometers to measure surfaces as small and irregular as a human eyelash, particularly when coated with a relatively soft substance such as mascara that makes it difficult to visually identify when the micrometer rods have reached the appropriate position on each side of the lash,” the NARB wrote.

The panel also affirmed that the lab testing wasn’t consumer-relevant. “The laboratory application of mascara to human eyelashes, using a confidential methodology that cannot be described in detail, did not appropriately replicate application of mascara to human eyelashes on the eyelids, either in total number of lashes or lash spacing,” the NARB said. “The panel agrees with the NAD that this test does not provide a reasonable basis for a precise quantified volume increase claim (e.g., ‘1,944% more volume’) that purports to represent what can be achieved by application of mascara to the human eyelash.”

As for the “before” and “after” images—which showed a small picture of an eye without mascara and a larger picture of the same eye with dramatically transformed lashes—the panel found the advertiser lacked the support for these performance claims, as it relied solely on the affidavit of its president. A “more informed” showing as to the accuracy of the images should have been provided, the NARB said, finding that the record did not sufficiently demonstrate that the “after” images had not been retouched or enhanced in any way.

Further, the images appeared directly below the “1,944% more volume” claim on the product packaging. Since the results of the lab tests used to support the “1,944% more volume” claim were found not to be reliable or consumer-relevant, the study’s findings could not in turn be used to support specific images that purportedly showed such an increase, the panel added.

“Based on the close proximity of the images to the claim, the panel believes that the ‘before’ and ‘after’ images reasonably convey a message that the images demonstrate the claimed 1,944% increase in volume, a message which is not reasonably supported by the record in this case,” the NARB wrote.

The NARB recommended that Too Faced discontinue both the “before” and “after” images as well as the “1,944% more volume” claim.

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

Why it matters: The NARB had several problems with the test results relied upon by the advertiser. In addition to concerns about the reliability of a micrometer used to measure the application of mascara to human eyelashes, the NARB questioned the consumer relevance of the testing, which did not replicate the application of mascara to human eyelashes on the eyelids, either in total number of lashes or lash spacing.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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