Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: Be Careful of Unintended Comparative Claims and Lack of Clear Disclosures
Below, we provide a high level summary of NAD decisions from the past month. A summary of last month's NAD decisions can be found here.
Heading into March, the number of reported cases jumped, as compared to earlier months in 2015. Cases this month span a variety of products and issues, but one theme that appeared in multiple cases, from one about anti-gas pills to another about dog attire, is the potential for unintended, implied, comparative claims.
Beware When You Compare
Genomma Lab USA, Inc.: La Pomada de la Compana, Case No. 5811 (Feb. 13, 2015). In this decision, NAD examined a television commercial for an antibiotic ointment claiming that "nothing works better than" the advertiser's La Campana ointment. The advertiser described this as an unsurpassed claim, but NAD found that in the context of a commercial where the main competitor ointments were "swept off the screen with an audible crashing sound" by the advertised brand, the claim became one of unsupported superiority. The advertiser agreed to permanently discontinue the commercial.
Thunderworks, Inc.: ThunderShirt, Case No. 5806 (Feb. 3, 2015). In this matter, the advertiser claimed that its dog compression sweater—the "Thundershirt"—provided "the best solution for dog anxieties." NAD noted that while "best" claims can sometimes be mere puffery, here the advertisement specified that it was "the best solution," and therefore constituted a comparative superiority claim. As the advertiser did not have data directly comparing Thundershirt to other dog anxiety treatments, NAD found the "best solution" claim to be unsupported.
Boehringer Ingelheim Corp.: DulcoGas Maximum Strength, Case No. 5809 (Jan. 28, 2015). Here, NAD examined an anti-gas treatment touted as "maximum strength," and disagreed with the advertiser's explanation that "maximum strength" referred only to its own, highest strength product. NAD instead found that consumers could reasonably believe that a single dose of the product provided as much active ingredient as a single dose of other anti-gas products on the market. The fact that the advertiser offered the maximum FDA recommended amount if consumers took the full daily number of pills, rather than necessarily a single dose, was insufficient to support the "maximum strength" claim when taken in context of other anti-gas medications and consumers expected use of the product.
Bausch & Lomb Inc./Wal-Mart Stores, Inc.: Equate MPS and Moisture Last, Case No. 5808 (Feb. 4, 2015). In contrast to some other decisions this month, here NAD found that a "compare to" statement on a package of store brand contact lens solution did not rise to a parity performance claim against the name brand competitor, because the performance attributes advertised on the product were far-removed and in different type from any performance-based claims. Under these circumstances, the "compare to" claim was merely an invitation to compare the store brand to competitive products, and did not require substantiation of parity performance. This decision affirms that NAD will not disturb private label "compare to" claims, so long as they do not affirmatively claim equivalent performance. If they do compare performance, such claims must be supported in the same way as any other comparative claim.
Offer Clear Disclosures and Realistic Expectations
Bandai America Inc.: Tamagotchi Friends, Case No. 5814 (Feb. 26, 2015). In this Children's Advertising Review Unit (CARU) matter, the maker of a digital "pet" was advised to include a clear audio voice over alerting consumer to the fact that batteries needed to be purchased separately in order to operate the toy. The missing battery disclosure violated CARU Guidelines.
Sprint Corporation: Sprint Wireless Services, Case No. 5812 (Feb. 18, 2015). In this latest battle of telecommunication providers, NAD sided with challenger, T-Mobile, against Sprint in connection with Sprint's advertising of its "new" network "built from the ground up" and in connection with claims of "most improved U.S. company in customer satisfaction." With respect to claims about being a network "built from the ground up," NAD acknowledged that while cell tower construction and other physical structures might not be material to a network when viewed through the lens of NAD and lawyers, from the perspective of reasonable consumer understanding (and supported by a consumer survey), "ground-up" can mean cell towers. NAD found that the "new" and "ground up" claims were overly broad and should be discontinued. Likewise, NAD found that while Sprint made a literally truthful statement that it was most improved in customer satisfaction, the claim failed to make clear that this improvement was not continuous year to year, but rather relied on 2008 data and ignored more recent negative data. Accordingly, NAD found the statement could be deceptive and recommended that it be discontinued.
Boy Scouts of America: Boys' Life Cybersearch Sweepstakes, Case No. 5810 (Feb. 9, 2015). NAD scolded the Boys Scouts in connection with their advertisements for a sweepstakes. The ads used the recommended language of "many will enter, one will win," but did so in what NAD deemed "mice-type" in print advertising, and not at all in website advertising unless the entrant clicked through the full contest rules. The Boy Scouts agreed to implement more conspicuous disclosures about the likelihood of winning.
Slimgenics, LLC: SlimGenics Weight-Loss Clinic, Case No. 5807 (Feb. 3, 2015). In this case, NAD reiterated its position that weight loss program testimonials must be typical or clearly disclaimed. The advertiser agreed to insert conspicuous disclaimers saying that "individuals typically lose 1-2 pounds per week" to appear in conjunction with its examples of individuals who claimed to have lost significantly more using the advertised program.
Takeaways for This Month
A lesson from the cases of this month is that regardless of whether your product is a digital pet or an anti-gas treatment, you are responsible for supporting the reasonable implications of an advertisement. If unqualified boasting, or missing disclaimers or explanations result in implied claims, the advertiser needs to have substantiation for those implied claims to sustain the advertising, regardless of the original intention. And, claims of "best" can either be puffery or superiority claims, depending on context.
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