The multi-billion-dollar beauty industry consists of companies big and small that compete for limited market share often by touting the powerful benefit of their products. At times, companies position their products as alternatives to cosmetic procedures or contain the “latest and greatest” anti-aging ingredients. More recently, there’s been a surge in “clean” claims such as sustainable claims and “fewer ingredients” claims. Although it is a well settled principle of advertising law that all claims must be supported by a reasonable basis before they are made, it appears that not all companies are aware of the rules of the road in claim substantiation.

Enter the US system of advertising self-regulation. The National Advertising Division (NAD) helps level the playing field for advertisers and ensure consumers are not deceived. Cosmetics advertising featuring anti-aging claims has been an important area of focus for NAD for more than two decades, and sporadically with regulators. In reviewing advertising claims, NAD always considers the context in which claims appear to evaluate all messages reasonably conveyed by the advertising. And remember, both words and images matter.

After identifying the messages conveyed by the ad, NAD reviews the supporting evidence to determine if it provides a reasonable basis for the claims made. What constitutes a reasonable basis depends on the claim being made – and the stronger the claim, the more robust the substantiation needed to support it. 

Common Product Claim Pitfalls

Overstatement is one of the most common pitfalls in the world of beauty claims.

For example, an advertiser may submit a reliable study, but the study may not be a good fit for the claims at issue. In one case from 2004 for Olay Regenerist eye lifting serum (NAD Case #4266), NAD reviewed claims that the use of the eye serum will result in “dramatically younger looking eyes” and produce results comparable to an eyelift.

Although many different types of reliable objective and subjective testing supported some of the product’s benefits, NAD found that the testing submitted did not fit the claims because the most positive and statistically significant test results related to making the eye area feel softer or look smoother. While the testing showed improved appearance in the skin, including a reduction in fine lines and wrinkles, it was not a dramatic one such that the results could be compared to eyelift surgery.

NAD recommended that the advertiser modify its “dramatically younger looking eyes” claim to more accurately reflect the evidence and to avoid conveying the unsupported message that the product can produce results similar to those achieved with an eyelift or other cosmetic surgical procedures.

Another common pitfall is unreliable testing.

The Quality of Evidence Matters

Certain methodological flaws can render a study or testing insufficiently reliable to support the challenged claims, even if there are some sound aspects of a test or study. In a 2020 case regarding Fillerina Dermo-Cosmetic Replenishing Gel (NAD Case #6373), the clinical study submitted was double-blind, placebo-controlled, and conducted on a sufficiently large and representative study population. Yet, the study  suffered from a number of flaws. For example, the period of time to assess the efficacy of the product was only two weeks for each of the tested products and the results did not demonstrate improvements as between the test product versus placebo.

In addition, the statistical analysis was faulty and there were small, non-statistically significant improvements that did not match the claims that the product “…fills in fine lines and wrinkles” and “corrects visible wrinkles and expression lines.” NAD recommended that the challenged claims be discontinued.

A Picture Is Worth a Thousand Words

Before and after photographs can convey a powerful message about the efficacy of a product and may factor into consumers’ purchasing decisions. Before and after photographs are performance claims and as such must be supported by reliable testing demonstrating that the after photo is what consumers can reasonably expect to achieve when using the product as directed.

In the 2017 Better Than Sex mascara (NAD Case #6131) case, the advertising included dramatic before and after photographs that appeared in connection with the express claim “1,944% more volume.” A confidentially submitted home use study in which subjects rated different aspects of the mascara reported some volume increase in their lashes but did not reliably establish that the dramatic before and after images depicted typical consumer results.

Advertisers should also be careful to avoid using shading or lighting techniques that make the after image look better or the before image worse.

Beauty Companies Getting it Right

In the 2021 Kerasal Fungal Nail Renewal (NAD Case #6421) case, NAD found that advertising claims about improved nail appearance were supported by a home use study on a representative and sufficient-sized test population, using an appropriate control. The study also included a long washout period to preclude confounding factors, along with a validated questionnaire with questions the subjects answered in their daily diary to guard against guessing.

The Rise of Consumer Reviews and Ratings

Because consumers rely on product reviews and ratings to decide which products to purchase, advertisers must ensure that reviews are properly collected and ratings are independently and reliably assessed. For example, “star ratings” should reflect the typical customer experience and represent the honest opinions of verified purchasers.

In a 2022 reopened case, Prose Haircare Product Reviews (NAD Case #7054), the advertiser solicited reviews from verified users using a neutral question and no incentives were provided in exchange for reviews. The website highlighted only positive reviews and the advertiser demonstrated that the reviews reflected typical customer experience and the honest opinions of verified purchasers.

NAD found that posting only positive reviews was not misleading because the reviews were displayed as testimonials from satisfied purchasers and not reviews from all customers. Further, most of its customers provided four- or five-star reviews and were satisfied customers.

If most of the star ratings are neutral or negative, highlighting only four- or five-star reviews will likely mislead consumers.

Blurred Lines: Editorial or Advertising?

Consumers should be able to differentiate between advertising and editorial content. If consumers think they are looking at an unbiased article, but it is actually an advertisement, they may give more weight to the recommendations in the article because they believe it is unbiased or neutral.

A recent decision, Dotdash Meredith (NAD Case #7177), cites a recent Smile Prep decision from BBB National Programs’ National Advertising Review Board noting that editorial content can become advertising when it is “influenced by an economic motivation to persuade readers to purchase products through affiliate links that generate affiliate marketing commissions.”

If a digital publisher creates content that is influenced by or created because of its affiliate marketing relationships, the content is advertising. It should be labeled as advertising and any objective product claims need to be supported.

Bringing It All Together

Based on what we’ve reviewed, here are some rules of the road advertisers should consider:

DO	DON’T
Do make claims that accurately reflect results found in reliable studies eliciting statistically significant and consumer meaningful results.	Don’t exaggerate the results found in reliable studies or liken the results to those obtained by topical cosmetics products to invasive medical procedures.
Do use photographs and product demonstrations that accurately reflect what consumers can reasonably expect to achieve when using the product as directed.	Don’t use photographs that show atypical results or exaggerate the performance consumers can expect to achieve.
Do use a disclosure to qualify a claim if it is accurate but make sure that the disclosure is clear, conspicuous and in close proximity to the claim it is qualifying.	Don’t use a disclosure to try and make an inaccurate claim accurate.
Do clearly and conspicuously disclose material connections between an advertiser and any sponsored content.	Don’t make your content look like an article when it is really an ad.
Do tout product innovations; e.g., fewer ingredients, naturally-derived ingredients, the absence of certain ingredients or the efficacy of an ingredient – if there is reliable supporting evidence.	Don’t tout the benefits of an ingredient (or the lack of an ingredient) without reliable supporting evidence.

Truthful advertising enhances the credibility of brands, encourages product innovation, fosters brand loyalty and improves consumer confidence in advertising. All departments involved in crafting and supporting advertising claims – from legal, to R&D, to marketing – should work together to ensure that all advertising claims are supported and all ads are fully vetted to avoid conveying misleading messages.

Competitor challenges and NAD’s monitoring efforts provide a level playing field so that companies that innovate and improve products to deliver meaningful benefits can truthfully advertise them to consumers and build trust in the beauty industry.


About the Author
Annie M. Ugurlayan is assistant director, National Advertising Division of the Better Business Bureau (BBB) National Programs.