Previously published by Legal Times on Friday April 20 2012.
It is often said that beauty is only skin deep, but since time immemorial, women, and less publicly, men, have sought to enhance their physical appearance. Cleopatra is even said to have bathed in milk. A more robust substance has been applied in this part of Africa, namely crocodile oil, the product involved in an Advertising Standards Authority (ASA) dispute concerning the company Repsidil.
The desire to look our very youthful best sustains a multibillion-dollar industry. Large amounts are spent on the research and development of products in cutting-edge facilities. However, it is the marketing of cosmetics that must convince consumers that they will achieve the edge. The first prize seems to go to products that will make wrinkles disappear or, at the very least, minimise their visual impact. To demonstrate the beneficial qualities of their products, companies will often use "before and after" photographs.
Interesting and different "before and after" promotional material was recently published in the United Kingdom. A L'Oreal advertisement for its Revitalift cream, promising smoother skin and a complexion of a more even nature, was prohibited by the British ASA for being "misleadingly exaggerated".
The black-and-white close-up shows actress Rachel Weisz staring into the camera. The advertisement was spread over two pages, and was published in a series of women's magazines. The British ASA held that the advertisement was digitally enhanced, and the actress's skin retouched, which created an image of skin that was unrealistically smooth, thus exaggerating the qualities of the product.
A similar ruling was made last year against advertisements featuring actress Julia Roberts and model Christy Turlington. Incidentally, although media reports on the issue generally refer to the photographs as having been "air-brushed", it seems that this term actually refers to pre-digital-era techniques.
The other recent controversy regarding the singer Adele, whose features were also enhanced electronically for the cover of Vogue , would probably fall outside the advertising body 's jurisdiction, as a magazine cover is unlikely to be considered an advertisement promoting a particular product.
As far as is known, a similar situation has not occurred in South Africa. What is of interest, though, is an ASA matter involving Verimark, where an advertisement included statements such as "Senzani effectively reverses the ageing process" and "Effectively prevent and reverse the effects of ageing". The ASA ruled that this implies that use of the products in question will result in the user looking younger after the treatment is completed.
Reference was made to specific clauses in the ASA Code dealing specifically with cosmetic products. In clause 4 of Appendix C, it is stated that cosmetic products have, by nature, a temporary effect. In ruling against the advertiser, the ASA held that by using claims such as these, the hypothetical reasonable consumer could be led to believe that the products will deliver permanent results. Claims suggesting permanent effects of cosmetics may accordingly not be used. Sometimes this would clearly follow from the nature of the product, such as sunscreen lotion. It seems correct to assume that a visual depiction of a woman's face with "too few" blemishes would be treated in the same manner as an advertisement making similar verbal claims. It is possible that provisions of the Consumer Protection Act might also apply, although this is not likely to be the type of misleading advertisement the legislature had in mind, and is unlikely to be a priority. A competitor may also be able to rely on the common law to prevent such advertisements from being published. The approach followed by the courts is to recognise a trader's right to attract custom, and to protect this right against conduct that will induce customers or potential customers to rather deal with the competitor.
An example is found in the Stellenbosch Wine Trust case. In this matter, the one party, the manufacturer and marketer of sparkling wines, obtained an interdict against a third party that fraudulently marketed its perlé wine as sparkling wine. This principle would similarly apply to the Revitalift advertisement.
The public may not be misled as to the actual nature of the product. One cannot, however, reasonably expect cosmetics manufacturers to use a model that is anything less than glamorous. It follows from the nature of cosmetic products that consumers will desire, or at least expect, some degree of glamour being portrayed.
In view of this expectation, it is not necessarily harmful or deceitful to enhance, to add, or even to subtract. A balanced approach is therefore required.
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