How a Before-and-After Photo May Be Used in an Ad

The short answer

A pair of photographs is a performance claim. It is treated like a sentence the advertiser wrote, and it has to be true and provable in the same way.

Three separate things have to hold. The pictures must be of the person whose story is being told. They must not exaggerate what happened to that person. And the outcome they show must either be what people generally achieve, or sit beside a clear statement of what people generally do achieve.

Most before-and-after marketing fails on the third one. It is also the failure a reader can spot without knowing anything about the company.

Why an image counts as a claim at all

This is older than the internet and it is written into the statute.

The Federal Trade Commission Act defines a false advertisement, and its definition names what counts when deciding whether an advertisement is misleading. Representations made or suggested by statement, word, design, device, sound, or any combination of them are all included. A design can represent something. So can a picture.

The same definition adds the other half. It also counts the extent to which an advertisement fails to reveal facts that are material in light of the representations it makes.

The Commission's health advertising guidance builds on that. Marketers are equally responsible for claims that are suggested or reasonably implied, and they cannot suggest a benefit indirectly that they could not claim directly.

The guidance also says how to identify the claim. Do not read individual phrases in isolation; assess the net impression conveyed by all elements, including the text, the product name, and any charts, graphs and other images.

Its worked example is a paired photograph. An ointment advertisement shows an older woman with a walker, then the same woman dancing. The guidance describes that pair as likely conveying a claim that the product dramatically improves the symptoms of a condition, even setting the product name aside.

Rule one: it has to be the actual person

The Endorsement Guides state it in a single line. The use of an endorsement with the image or likeness of a person other than the actual endorser is deceptive if it misrepresents a material attribute of the endorser.

Their first illustration is a skin care page. The testimonials are accurate, but the site pairs them with purchased stock photographs of people with near-perfect skin. The images misrepresent the improvement the endorsers actually had.

The second is the one worth holding onto. A weight-loss testimonial is truthful and the endorser's loss is real, but the picture beside it shows a person far smaller than the endorser ever was. The Guides describe this as misrepresenting the product's effectiveness, because the image implies a proportion of body weight the endorser never lost.

A third example moves it away from weight entirely. A reading program's sponsored post quotes the parent of a seven-year-old, and shows a child who appears to be about four. The image misrepresents the program's effectiveness by suggesting it taught a much younger child to read.

The pattern is the same in all three. A stand-in photograph does not merely decorate the quote. It changes what the quote claims.

Rule two: the real photo can still overstate

The Guides close the obvious escape route in one sentence. Even when the picture is of the actual endorser, the testimonial can still communicate a deceptive typicality claim.

That is because of how a key-attribute endorsement is read in the first place. An advertisement showing one or more consumers' experience on a central attribute of the product is likely interpreted as representing that the experience is representative of what consumers generally achieve.

A before-and-after pair is about as central as a depiction gets. It puts the outcome on the screen with no hedging available.

So a real photograph of a real customer clears the honesty bar and lands straight into the typicality problem. That is where the third rule comes in.

Rule three: what the photographs have to be sitting next to

The Guides work this through directly on a before-and-after example, and the reasoning is worth following step by step.

In their hypothetical, an advertisement features before-and-after pictures of a woman who says she lost fifty pounds in six months with the product. That is likely to convey that her experience is representative. If consumers cannot generally expect such results, the advertisement is deceptive.

What should happen instead is a clear and conspicuous disclosure of what people can expect in the circumstances depicted, phrased as the typical loss over the period shown.

Then they reject two disclosures that look responsible. Stating an average of one to two pounds a week is inadequate, because it does not communicate the expected result over six months and implies the rate holds throughout. Stating that most users lose somewhere between ten and fifty pounds is inadequate too, because the range is so wide it does not communicate what a user can generally expect.

The Commission's health guidance shows the same repair on a magazine page. Before-and-after photographs with an asterisk pointing to fine print saying the results are not typical is inadequate on two counts. The wording is vague, and the placement and size are not prominent enough to qualify the claim. What is likely to work is the study's own average, stated immediately beside the quote in prominent type, with the placebo group's average beside it.

The narrow case where a dramatic pair is fine

There is one route the Guides leave open, and it does not involve a disclaimer.

An endorsement can describe the exceptional circumstances that produced the result, in the endorsement itself. Their example has the endorser spelling out an extreme diet and many hours of daily exercise alongside the product.

Because the endorser clearly describes those limited and truly exceptional circumstances, the advertisement is not likely to convey that ordinary users will do the same. The specificity does the work a disclaimer could not.

Even then, the advertiser needs substantiation for any performance claim the endorsement conveys — including that the product contributed at all, rather than the diet and the exercise accounting for the whole result.

A different rulebook for a brand-name prescription ad

One more instrument sits nearby, and it binds a different party.

The Food and Drug Administration's prescription drug advertising regulation applies to advertisements issued or caused to be issued by the manufacturer, packer or distributor of the drug being promoted.

Its list of things that make such an advertisement false, lacking in fair balance, or otherwise misleading runs to twenty items. One of them is short: using headline, subheadline, or pictorial or other graphic matter in a way that is misleading.

So the same instinct is codified twice, under two agencies, for two different advertisers. A telehealth brand advertising a service answers to the Commission. A drug manufacturer advertising its own product answers to the Administration under this regulation as well.

Reading a set of photographs

Four questions cover almost all of it, and none of them require expertise.

Is this the same person in both frames? Look at lighting, posture, camera angle, clothing and background. Consistency is not proof of honesty, but a mismatch is worth noticing.

Does the page say who this person is and what else they did? A regimen described in the caption is a better sign than a caption that names only the product.

Is there a typical outcome stated near the photographs, in the same size type? If the only qualifying text is small, at the bottom, or behind an asterisk, the Commission has published its view of that arrangement.

Would the claim survive without the pictures? If the words alone would not carry it, the pictures are doing work that has to be provable.

None of that settles whether any particular advertisement is lawful. It tells you where the weight of a page is resting.