New York, NY – April 10, 2014 – The National Advertising Division has recommended that Ontel Products Corporation discontinue the use of challenged before-and-after images used in advertising for the company’s Pink Armor nail gel product. NAD also determined that certain challenged claims were permissible puffery.
NAD is an investigative unit of the advertising industry’s system of self-regulation. it is administered by the Council of Better Business Bureaus.
Product demonstrations and performance claims made by Ontel in broadcast, print and Internet advertising, as well as on product packaging, were challenged by Coty Inc., a competing manufacturer of nail products.
- “Your nails won’t peel, chip or crack no matter what the attack.”
- “Rock Hard Finish.”
- “[G]uaranteed to transform cracked, brittle and weak nails into healthy, stronger, brighter nails with just one coat, once a week.”
- “[W]ith just one coat, once a week, [i]t’s like getting a professional nail treatment at home manicure at home!”
The challenger also took issue with “before-and-after” photographs, arguing that the photos misrepresented the rate at which nails grow and how a consumer’s nails look after using the product and implied that the product healed diseased nails and cuticles.
The advertiser argued that its product packaging clearly and conspicuously stated that the “before” and “after” photographs were dramatizations. The advertiser maintained that these dramatizations constituted puffery because consumers are accustomed to seeing dramatizations in advertising.
Key to NAD’s decision was its consideration of the “before and after” shots.
NAD noted in its decision that “before” and “after” photographs are product performance claims that must be supported, accurate and representative of the level of product efficacy that a reasonable consumer can expect to achieve. The front and side panels of the Pink Armor Nail Gel product package prominently feature “before and after” photographs. The “before” photographs depicted short and visibly damaged or diseased fingernails, while the “after” depicted perfectly manicured, shiny, noticeably longer and pink fingernails after four weeks of use. The “dramatization” disclaimer appeared below the photographs.
In the challenged television commercial, the “before” and “after” appeared in conjunction with the consumer testimonials, a demonstration of the announcer putting her hands into a bowl filled with rocks and moving her hands around vigorously to show that, with Pink Armor, her nails “won’t chip, peel or crack whatever the attack,” and a depiction of the gel penetrating deep into the nail bed to “[h]elp battered nails recover faster.”
The advertiser submitted no product testing in support of its “before” and “after” photographs/product demonstrations or its performance claims. NAD recommended that, given the lack of reliable supporting evidence in the record, the “before” and “after” photographs and the visual simulation of the keratin penetrating the nail bed be discontinued.
NAD determined that the claims “Rock Hard Finish” and “[W]ith just one coat, once a week, [i]t’s like getting a professional nail treatment at home manicure at home!” constituted permissible advertiser puffing. However, NAD recommended that the advertiser discontinue the unsupported product performance claims “Your nails won’t peel, chip or crack no matter what the attack” (together with the depiction of the woman moving her nails around vigorously in the rock bed) and “[G]uaranteed to transform cracked, brittle and weak nails into healthy, stronger, brighter nails with just one coat, once a week.”
Ontel, in its advertiser’s statement, said the company disagreed with the NAD’s determination regarding Ontel’s before and after pictures, but would “abide by the NAD’s recommendation in deference to the NAD and the self-regulatory process ….”
Further, the company said the broadcast advertisement at issue is no longer running, that it would remove the commercial from its website and that it would take NAD’s recommendations under advisement for any future commercial that airs on television or its website as part of its marketing campaign.