## Facts

- Ontel Products Corp. manufactured and sold Pink Armor Nail Gel, a cosmetic fingernail product, and advertised it in broadcast, print, online materials, and on product packaging.
- Coty Inc., a competing nail-care company, challenged Ontel’s advertising in a proceeding before the National Advertising Division (NAD) of the Better Business Bureau’s self-regulatory program (NAD Case No. 5701).
- Ontel’s advertising and packaging used before-and-after photographs that, in net impression, showed extremely rapid nail improvement: the “before” images depicted short, broken, unhealthy-appearing nails, while the “after” images depicted long, polished, pink, perfectly manicured nails.
- The photographs conveyed the idea that nails could grow to the length shown in approximately a month (about 1.5 inches of growth), even though typical nail growth is far slower (about 1.5 inches per year).
- Coty argued the images also suggested the product could heal diseased nails and inflamed cuticles, even though Pink Armor was a cosmetic product.
- Ontel did not provide controlled product testing as support for the dramatic results suggested by the visuals. Ontel relied primarily on customer endorsements and testimonials to support the accuracy of the before-and-after depictions.
- Ontel also pointed to a “dramatization” disclaimer on the product packaging and argued that reasonable consumers would recognize the imagery and associated performance messaging as exaggeration rather than literal performance.
- NAD issued its decision on March 27, 2014, with a “Modified/Discontinued” case disposition. Ontel disagreed with NAD’s conclusions but stated it would comply with NAD’s recommendations.

## Issues

1. Whether the before-and-after photographs communicated objective product-performance claims (including implied claims about nail growth and nail condition) that required substantiation showing results consumers could reasonably expect.
2. Whether the “dramatization” disclaimer and Ontel’s characterization of the visuals as exaggeration prevented the images from conveying substantiation-required performance claims.
3. Whether customer testimonials and endorsements, without reliable product testing, were sufficient support for the implied rate-of-growth, appearance, and implied healing messages conveyed by the advertising.

## Decision

- NAD determined the before-and-after photographs functioned as product-performance claims and conveyed messages about the kind of results consumers could expect from Pink Armor.
- NAD concluded Ontel lacked adequate substantiation for the dramatic results conveyed by the images, including the implied rate of nail growth and the implied transformation from visibly damaged, unhealthy-appearing nails to long, perfectly manicured nails within a short period.
- NAD found the “dramatization” disclaimer did not remove Ontel’s obligation to have evidence that consumers would typically achieve results like those depicted.
- NAD concluded that testimonials and anecdotal consumer feedback did not adequately support the objective performance messages conveyed by the advertising’s overall take-away.
- NAD recommended that Ontel discontinue the challenged before-and-after photographs (and related depictions conveying the same messages) and modify or discontinue associated performance claims unless Ontel could provide adequate substantiation.
- Ontel stated it would comply with NAD’s recommendations.

## Legal Principles

- An advertiser must have a reasonable basis for objective product claims before disseminating them.
- Before-and-after photographs are treated as product-performance claims; they must be accurate, supported, and representative of results a reasonable consumer can expect.
- A disclaimer such as “dramatization” does not nullify the main visual message when the overall take-away remains that consumers will get dramatic, typical results.
- Consumer testimonials and endorsements, standing alone, generally do not substantiate strong objective performance claims communicated through visuals and express performance messaging.
- Visuals and context that imply treatment of diseased or unhealthy conditions can communicate implied health-related claims, which require reliable support consistent with the claims conveyed.

## Conclusion

In NAD Case No. 5701, NAD found that Ontel’s Pink Armor Nail Gel before-and-after photos conveyed objective performance messages—about rapid nail growth, dramatic cosmetic transformation, and implied improvement of unhealthy-looking nails—that required substantiation, and NAD concluded that a “dramatization” disclaimer and customer testimonials were not adequate support; NAD recommended discontinuing the photos and modifying or discontinuing related performance claims, and Ontel agreed to comply.


Ontel Products Corp. (Pink Armor Nail Gel), NAD Case No. 5701 (2014)