Digitally altered images of models have been a controversial advertising issue for decades. In Great Britain, the Advertising Standards Authority Ltd., which is the governing regulatory advertising body, in 2011 banned skincare advertisements featuring digitally altered images because the advertisements exaggerated the effects of the skincare and makeup products and were held to be misleading “per se.”^[1] In France, as of October 1, 2017, “it [was] mandatory to use the label ‘retouched photo’ alongside any photo used for commercial purposes where the body of a model has been modified by image-editing software to either slim or flesh out her figure” and any violation might result in a fine of up to €37,500.

While legislation has been introduced since 2014 in Congress in the form of the Truth In Advertising Act seeking to have the Federal Trade Commission submit a report to Congress that would include a strategy to reduce the use of images which have been altered to materially change the physical characteristics of the faces and bodies of the featured individuals and provide recommendations for a risk-based regulatory framework with respect to photoshopping. This proposed legislation has not made progress in Congress and has not become law.

Notwithstanding Congress’ failure to pass the Truth In Advertising Act, industry forces in the United States have made progress in impacting how photoshopping is viewed in the fashion industry. In 2013, the National Advertising Division of the Better Business Bureau (“NAD”) ruled that a CoverGirl advertisement for mascara was misleading and deceptive because of photoshopping and the model was wearing lash extensions, notwithstanding the fact that the advertisement was for mascara alone.^[2] The NAD held that when an advertisement made a qualified performance claim and included an artificially enhanced picture of a model, either digitally or physically, the picture constituted a false product demonstration. While the NAD decision is not binding precedent upon the Federal Trade Commission (“FTC”), the NAD monitors national advertising in all media, enforcing high standards of truth and accuracy.

Notwithstanding the failure of Congress to pass the Truth in Advertising Act, a number of retailers have taken the position that digital alteration or photoshopping of advertisements will no longer be permitted. In March 2017, Target launched a Photoshop-free social media campaign for swimsuits. In response to the new French law, Getty Images announced that effective October 1, 2017 its photo submission policies for its service and iStock and banned the submission of “any creative content depicting models whose body shapes have been retouched to make them look thinner or larger.” On January 15, 2018, CVS pledged to stop “materially altering” all of the imagery associated with its beauty products — in stores, on its website and on social media — fully effective April 2019. Significantly, as part of this initiative, CVS also is asking all of the brands it offers for sale on its retail platforms to do the same or clearly and visibly mark the retouched images as “modified.” CVS has defined “materially altered” as “changing or enhancing a person’s shape, size, proportion, skin or eye color, wrinkles or any other individual characteristics.” Given that CVS has 7,900 stand-alone stores in the United States, it remains to be seen whether this trend will be continued by other retailers. It remains to be seen whether photoshopping will be regulated in the United States given these industry developments.

_{[1] About Face: Lancôme’s Airbrushed Makeup Ads Banned in the UK}

_{[2] NAD Report No. 5635 (Sept. 25, 2013) http://www.businessinsider.com/us-moves-toward-banning-use-of-photoshop-in-cosmetics-ads-2011-12}