NAD Recommends Benefit Cosmetics Discontinue Promoting its ‘they’re Real! Mascara’ Product with ‘#1 Best-Selling’ Claims

New York, NY – Sept. 13, 2017  – The National Advertising Division has recommended that Benefit Cosmetics discontinue promoting the company’s “they’re Real! Mascara” with the advertising claims “#1 best-selling’ Prestige Mascara in the U.S.*” and “#1 best-selling Prestige Mascara in the U.S. for 3 years **.”

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

Claims made by Benefit Cosmetics in online and point of sale advertising were challenged by Too Faced Cosmetics, maker of competing Better Than Sex mascara.

NAD reviewed express claims that included:

  • “#1 best-selling Prestige Mascara in the U.S.*”
    • (“*Source: The NPD Group, Inc./U.S. Prestige Beauty Total Department Specialty, Makeup Dollar Sales July 2015-June 2016”)
  • “#1 best-selling Prestige Mascara in the U.S. for 3 years **.”
    • (“**Source: The NPD Group, Inc./U.S. Prestige Beauty Total Department Specialty, Makeup Dollar Sales July 2013-June 2016”)

Too Faced argued that the advertisers’s #1 best-selling claims were truthful in the past, but have not been true for more than a year. The challenger contended market research data compiled by The NPD Group, Inc. (formerly National Purchase Diary) for the 2016 calendar year shows that its BTS mascara has surpassed the advertiser’s they’re Real! mascara and become the U.S. sales leader in both units and dollars in the prestige mascara product category.

The challenger asserted that consumers would reasonably understand Benefit’s “#1 best-selling Prestige Mascara in the U.S.” claim as being current through the present day, as opposed to  being true a year ago, and would interpret Benefit’s “#1 best-selling Prestige Mascara in the U.S. for 3 years” claim to mean that they’re Real! has been the #1 prestige mascara for the most recent three years, as opposed to reflecting a time period ranging from one to four years ago.

The advertiser, meanwhile, contended that when the advertising is viewed as a whole, it is clear that the #1 best-selling claims are “referring to past glories only” because the disclosures effectively limit the application of the claims to the stated time periods. Further, the advertiser said, even if a consumer could not understand that the claims were referring to the advertiser’s past glories, regulatory authorities have recognized that advertisers cannot protect the “unthinking and credulous consumer.”

Following its review, NAD found that the disclosures were not clear and conspicuous. And, NAD noted, even if they were clear, conspicuous and in proximity to the main claims, they remain problematic.

Disclosures, NAD noted, should not contradict or materially change the main message conveyed by an advertising claim.  Here, Benefit reasonably communicated the message on its website and point of sale advertising that its product is currently the best-selling prestige mascara in the U.S., whichis directly contradicted by the advertiser’s disclosures. Further, NAD has previously found that current sales data is generally required to support a #1 selling claim.  In this case, the NPD sales data on which the advertiser relies are more than one year old and simply too outdated to support such claims.

NAD recommended that the advertiser discontinue its claims that they’re Real! is the “#1 best-selling Prestige Mascara in the U.S.” and the “#1 best-selling Prestige Mascara in the U.S. for 3 years” because the claims conveyed the unsupported message that the advertiser’s product was currently the best-selling prestige mascara in the United States. NAD also concluded that the advertiser’s disclosure was insufficient to render its #1 best-selling claims truthful and not misleading.

“Notwithstanding the company’s disagreement with the NAD’s decision,” Benefit said, “the Company agrees to comply with the NAD’s recommendation and discontinue use of the advertising materials containing the claims.”

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.