Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers, especially those in the health and beauty sectors, often use ‘before’ and ‘after’ photos of subjects to provide a visual representation of the effectiveness of their products. Commonly, this technique is used to demonstrate the efficacy of slimming products, diet regimes, cosmetic creams and products (for example mascara and foundation) and hair loss treatments. Such photos are not confined exclusively to the health and beauty sectors and some marketers have used them to show reductions in prices or, for example, to demonstrate the efficacy of devices to remove scale from pipes.
The ASA has upheld many complaints about the use of ‘before’ and ‘after’ photos that exaggerate the efficacy of a product (The Higher Lifestyle, 4 January 2012; Radicalabsdirect.net, 20 July 2011; Lifes2good UK Ltd, 18 May 2011; Tony Ferguson UK Ltd, 27 April 2011; The Harley Medical Group Ltd, 24 November 2010; Intra Med Ltd, t/a Health Solutions, 27 October 2010; Gymophobics (Licence) Ltd, 6 August 2008; Age Technology, 5 March 2008; Phyto Nature Source, 25 October 2006; CAT Industries Ltd t/a Skin Doctors, 10 November 2004, and Windsor Group, 17 March 2004).
CAP and the ASA regard the use of such photos in the same way as testimonials and marketers should therefore ensure that they meet the requirements of rules 3.45 to 3.48 of the CAP Code. They should hold signed and dated proof that the photos are genuine and have not been manipulated (Love Me Ltd, 4 January 2012). The photos should not exaggerate the efficacy of the product and marketers need to ensure that they have relevant evidence to substantiate the impression created by the images. One marketer showed that its before and after photos were genuine but did not provide a robust body of evidence to substantiate the level of efficacy implied by the photos (BuyCosmetics.com, 25 January 2006).
Because ‘before’ and ‘after’ images are frequently used in cosmetic advertising, CAP issued a Help Note in April 2011. The Help Note, entitled “Cosmetic advertising: Use of production techniques in cosmetics advertising”, offers greater clarification on the use of pre- and post- production techniques in cosmetic ads and the ways in which they can mislead. It discusses, for example, ‘before’and‘after’ images where only the ‘after’ image had used pre-production techniques (Johnson & Johnson Ltd, 6 January 2010), the use of lash inserts that are longer or thicker than the model’s natural lashes (Coty UK Ltd t\a Rimmel London, 24 November 2010, L’Oreal (UK) Ltd, 25 July 2007), re-touching related to any characteristics directly relevant to the apparent performance of the product, for example, removing or reducing the appearance of lines and wrinkles around the eyes for an eye cream advertisement (L’Oreal (UK) Ltd t/a Maybelline, 27 July 2011, Procter & Gamble (Health & Beauty Care) Ltd, 16 December 2009), the excessive use of hair extensions or inserts that significantly adds to hair volume in hair care advertisements (L’Oreal (UK) Ltd, 2 June 2010), and so on. The main message here is that advertising claims (including visual claims) should not misleading exaggerate the effect the product is capable of achieving. Advertisers should ensure they retain appropriate material to be able to demonstrate what re-touching has been carried out in the event of being questioned (L’Oreal (UK) Ltd t/a Lancome, 27 July 2011). Marketers should not use superimposed qualifications or disclaimers as ‘carte blanche’ to excuse otherwise disallowed activities or impressions.
Marketers do not have to label photographs explicitly as “before” and “after” to mislead readers about the effect of the product. Sometimes the mischief is more subtle and effectiveness can merely be implied.
When using “before” and “after” images of subjects who have undertaken a diet or exercise plan, marketers should be careful not to imply that they can offer treatment for obesity by showing “before” images of obese subjects unless the plan is supervised by a suitably qualified health professional (Obesity Lifeline Ltd, 26 November 2001). CAP regards obesity as a serious medical condition and rule 12.2 restricts references to those conditions.
Marketers quoting or using visual techniques to show “before” and “after” prices should be mindful of the Department for Business, Innovation and Skills Pricing Practices Guide. Rule 1.6 states that RRPs and the like, when used as a basis of comparison should be genuine and should not differ significantly from the price at which the product is generally sold.
Last modified : 08 March 2012