FROM THE INDUSTRY’S LEGAL DESK, TAMAR NATHAN TALKS BANNED ADVERTISING
Lancôme and Maybelline have been rapped on the knuckles by the Advertising Standards Authority (ASA) for digitally altering photographs of Julia Roberts promoting “Teint Miracle” foundation and of Christy Turlington promoting “The Eraser” foundation.
The complaints were brought by Lib-Dem MP Jo Swinson, who argued that the ads were misleading as airbrushing the images created a false impression and did not reflect the results that the products would give.
Lancôme argued that the photo of Julia Roberts had been taken by fashion photographer Mario Testino who was known for taking flattering pictures. They claimed that Julia Roberts also had “naturally healthy and glowing skin” and provided pictures of her on the red carpet in support of this. They argued that the image was in the context of an ad for foundation which is made to cover imperfections, and maintained that the ad provided “an aspirational picture of what could be achieved” by using the foundation. In support of their arguments Lancôme provided a table of consumer testing results for the foundation, highlighting that the consumers tested agreed the foundation made their complexion look “more radiant and luminous”.
Maybelline argued that despite post-production techniques being used to alter the picture of Christy Turlington, the image accurately illustrated the results the product could achieve. They argued that although the image had been digitally altered, “fine lines under the eye, crow’s feet, expression lines on the cheek and lines and pores near the model’s nose were nevertherless clearly visible”. They also contended that the image of Christy Turlington was consistent with the public perception of the model and provided pictures of her at public events to demonstrate this. However small print along the bottom of the ad conceded that the image was an "Illustrated effect". Like Lancôme, Maybelline produced consumer testing scores which they argued demonstrated the public agreed with the claims they had made about the product.
The ASA was not convinced by Lancôme and Maybelline’s arguments and upheld that the ads were likely to mislead. Both ads had breached the rules in relation to Misleading Advertising and Exaggeration.
Up until 1 March of this year the ASA monitored all printed adverts, television and radio adverts and its remit in respect of online advertising extended only so far as paid-for space and sales promotion. This meant that companies could scrutinise the ASA for online adverts and marketing. The digital remit of the ASA was vastly extended from 1 March 2011 and now regulates advertising across all media, including all marketing communications online, although journalistic and editorial content and material related to causes and ideas remain excluded. As these cases show, it is important to comply with the ASA advertising codes when advertising through any media.
Following the ASA adjudication Boots brand No 7 recently launched its “Ta Dah” campaign which uses non-airbrushed models who have not had plastic surgery. This has been heralded by those wanting more transparency and visual reality from advertisements.
Posted by Industry member Tamar Nathan, Associate at City law firm, Fox Williams LLP, and a member of the Fox Williams Fashion Law Group.
Further information about the Fox Williams Fashion Law Group can be found on its dedicated fashion law website at www.fashionlaw.co.uk and for more information on how IP rights can be used to protect businesses operating in the fashion sector please contact Tamar Nathan at [email protected].
