Britain’s Advertising Standards Agency (ASA) recently banned airbrushed magazine advertisements for L’Oreal brand cosmetics that featured actress Julia Roberts.  As reported by CNN here, the agency concluded that the technique of air-brushing misled consumers by exaggerating the products’ abilities to cover lines, wrinkles and blemishes.  Britain’s ASA (a self-regulatory organization) is the functional equivalent of the United States’ Federal Trade Commission or the National Advertising Division of the Better Business Bureaus, but with exclusive control over advertising content.  In video that accompanies the linked CNN story (above), the anchors concluded that, in the U.S., we have no laws that prohibit such misleading advertising copy.  Of course, the FTC would disagree.  The FTC regulates misleading advertisements aggressively, including advertising through imagery or graphics.  The ASA’s position against air-brushing inspires a discussion ofUnited States laws and regulations that govern misleading representations in advertising through imagery.

The FTC review s any representation, omission or practice that is likely to mislead the consumer.  The term “representation” includes imagery where the graphics convey an implied claim.  The FTC imputes implied claims to advertisements based on an examination of the advertisement as a whole.  A misrepresentation is an express or implied statement contrary to fact.  In addition, merely offering a product for sale creates an implied representation that the item is fit for the purpose for which it is sold.  The FTC interprets advertising through the reasonable consumer standard.  Thus, if a reasonable consumer would understand the image to convey an implied claim, then the FTC will hold manufacturers accountable for the claim (even if unintended by the manufacturer).  Note that the FTC assumes all express or implied representations intended by the manufacturer are material to consumers’ purchasing decisions.

The FTC frequently reviews images associated with advertising content.  The “before and after” pictures in weight loss advertisements are paradigmatic examples of representations through imagery.  The after picture is an implied claim that the product produces the pictured results and, if not disclaimed properly, that the product achieves similar results for all consumers.  The FTC actively pursues advertisements that convey false impressions through images.  See, e.g., Telebrands Corp. v. FTC, 457 F.3d 354, 360-62 (4th Cir. 2006).  Thus, the FTC has authority to act against cosmetic advertising should the FTC determine that the claims conveyed by air-brushed advertisements are material and deceptive.

Advertisements are commercial speech subject to First Amendment protection under certain circumstances.  Moreover, some images are rightly considered puffery and, so, cannot be fairly interpreted by a reasonable consumer to convey material claims.  Counsel trained in FTC matters can quickly ascertain whether defenses exist to liability or whether revisions should be made to advertising content.  Lessons learned from FTC precedent dictate that companies should pay careful attention to all aspects of advertising, including the images associated with text.  Carefully worded ad copy may not be enough to overcome the net impression of an advertisement that features several graphic images.  Marketing developers should look at the advertisement as a whole and ask whether the advertisement could reasonably convey product performance claims that are unrealistic or unproven.  The FTC requires that companies have substantiation for material claims before advertising.  It is critical, therefore, to understand the scope of claims before the advertisements are first disseminated to the public.

Click here, for more information concerning FTC’s position on deception in advertising.

– Peter Arhangelsky is a Senior Associate with Emord & Associates and can be reached at (202) 466-6937 or


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