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Litigation: Photoshop—the next false advertising risk?

Cases of digitally manipulated cosmetics ads in the UK should give U.S. companies pause

A series of recent U.K. false advertising rulings involving digitally manipulating photographs raise new questions about potential liability risks. On Oct. 24, the British Advertising Standards Authority (ASA) banned a Christian Dior mascara ad featuring Natalie Portman. The ad for Dior’s New Look Mascara made the claims: “Lash-multiplying effect volume and care mascara. The miracle of a nano brush for an unrivalled lash creator effect. It delivers spectacular volume-multiplying effect, lash by lash.” The accompanying full-page photo shows a stunning Mrs. Portman with lashes long, lovely, beyond human.

Dior’s competitor, L’Oreal UK, challenged the advertisement as just that—a distortion of reality. Filing a complaint with ASA, L’Oreal alleged that the image misleadingly exaggerated the likely effects of the product. During the subsequent ASA investigation, Dior admitted that Portman’s lashes had, in fact, been digitally enhanced and lengthened in post-production using Photoshop software.

In deciding that the ad should be banned, ASA noted that the specific area retouched, the lashes, was directly relevant to the apparent performance of the mascara. The ASA gave Dior credit for submitting survey results and testing showing that the product does achieve the benefits claimed by the text. Enhancing Portman’s lashes in the photograph, however, was found “likely to mislead” and therefore the ad was banned.

L’Oreal’s scrutiny of its competitor’s ad may have been prompted by its own problems with ASA. Earlier this year, ASA banned L’Oreal’s ad for Revitalift Repair Anti-Aging Moisturizer. The ASA condemned the use of a photo of actress Rachel Weisz that “had been altered in a way that substantially changed her complexion to make it appear smoother and more even,” which therefore “misleadingly exaggerated the performance of the product in relation to the claims ‘skin looks smoother’ and ‘complexion looks more even.’” In 2011,  ASA also pulled L’Oreal ads featuring Julia Roberts and Christy Turlington for digitally manipulating photographs in connection with ads promising better looking skin.

While these ASA rulings are limited to the cosmetic industry, they raise the question, aren’t all advertising photographs enhanced in post-production? Using Photoshop and similar products to visually enhance advertising photographs is not only ubiquitous, it is an expected advertising industry standard. Obvious examples come to mind outside the cosmetic context. Was the sunset at the last resort you visited as brilliant as it looks on the website? Did the last TV dinner you pulled out of the microwave look like the picture on the package?

Could digital manipulation of photographs create liability for false advertising? Though the ASA is a U.K. organization, its reasoning and language closely parallels U.S. false advertising law available to both competitors and ordinary consumers through civil suits. The Lanham Act bars “a false or misleading representation of fact…[that] misrepresents the nature, characteristics, qualities …[of] goods, services or commercial activities.” Questions of degree and materiality will certainly come into play in any particular situation. Counsel for any company that advertises its offerings in photographs will want to ensure that efforts to present the product in its best light do not cross the line into misrepresenting the facts. 

Contributing Author

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Dave Barnard

Mr. Barnard is a first-chair trial lawyer. He has litigated patent, trademark, false advertising, copyright, trade secret and other commercial disputes in different courts throughout...

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