Most Read Contributor in South Africa, September 2016
Previously published by Legal Times on Friday April 20
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
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
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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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