Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: Clearly Identify the Basis of Claims and Comparisons

Below, we provide a high-level summary of some of the NAD decisions from the past month. A summary of last month's NAD decisions can be found here.

Cases this month covered products from an array of categories: antiperspirant, internet services and dish detergent, to name a few. While the specific products and advertising claims varied greatly, the majority of the decisions tackled issues related to the clarity of comparative claims. NAD repeatedly recommended better identification and disclosure of products and attributes to allow consumers to reasonably perceive and understand the comparisons made by the advertisers.

Advertisers Are Free to Choose the Basis of Their Comparison, But Need to Make It Clear to Consumers

DraftKings, Inc.: DraftKings.com, Case No. 5816 (March 10, 2015). In this opinion, NAD tackled the question of what it means for a company to be "U.S.-based." The challenge was brought by one fantasy sports website against another. The parties agreed that the challenger operated a larger sports website, but disagreed as to whether it was the largest "U.S.-based" destination for fantasy sports consumers. NAD noted that the claim was not the same as "Made in America" claims, but instead hinged on the location of the company. NAD considered U.S. Supreme Court case doctrine in its analysis, but did not rely on it as dispositive, instead focusing on what consumers would perceive the "U.S.-based" claim to mean. Ultimately, NAD concluded that the claim misleadingly implied that the competitor had "no appreciable presence in the United States" when it actually had a significant number of employees, servers and other aspects of its company within the U.S. NAD recommended that DraftKings discontinue its claims.

The Procter & Gamble Co.: Cascade Platinum, Case No. 5818 (March 11, 2015). In this decisions, NAD found that an advertisement for Cascade Platinum claiming to "power[] through your toughest messes better than the competition, the first time" was making a direct comparison to the competing detergent, Finish All-In-One Powerball, because the product portrayed in the commercial, while not named, clearly resembled the Finish product. NAD concluded that the claim itself was sufficiently supported by testing data, but recommended that the side-by-side demonstration showing removal of a brownie mix from a ceramic pan be discontinued. NAD concluded that the demonstration was likely to convey the message that Cascade Platinum cleaned better across many soil types and circumstances, when the supporting tests covered only more limited circumstances.

Unilever United States, Inc: Degree MotionSense and Degree Clinical Protection Antiperspirants, Case No. 5819 (March 25, 2015). In this decision, NAD determined that commercials touting the performance of Degree MotionSense antiperspirant implied a line claim, rather than a claim comparing specific variants of antiperspirant competitors. NAD based its decision on the use of references to Degree, Old Spice, and Secret and the lack of clarity about the actual basis of the comparison in claims like "the only antiperspirant that releases extra protection when you move." NAD similarly concluded that the commercials for Degree Clinical Shower Clean implied a line claim as to all Secret Clinical antiperspirants, because the voice over failed to identify the variant of Secret product and a graph and disclaimer depicting test data were in small, faint type. NAD recommended that both commercials be discontinued, but noted that nothing in its decision prevented Unilever from advertising the Degree product attributes provided clear disclosure of the attribute and basis of comparison.

Kimberly-Clark Global Sales, LLC: Huggies Little Snugglers Diapers, Case No. 5822 (March 30, 2015). In this matter, Procter & Gamble challenged Kimberly-Clark's claims that its Huggies Little Snugglers diapers "draw away more mess" than Pampers Swaddlers diapers. The parties disagreed about the meaning of "mess," amongst other issues. NAD concluded that in the context of the specific commercial and side-by-side demonstration, consumers might reasonably interpret the claim to relate to urine rewet performance. As Kimberly-Clark's support for the claim related to the diapers' ability to draw away bowel movement, NAD recommended that the claim be discontinued. However, NAD concluded that Kimberly-Clark did have data to support a claim that Huggies Little Snugglers draw away more mess from breastfed infants than do Pampers Swaddlers in sizes NB, 1, 2, and 3. NAD also found that a broad, unqualified on-package a claim of "unbeatable skin care" implied an objective assessment of multiple attributes that consumers would reasonably associate with skin care. As the claim was instead supported by a survey of consumer product users, but did not disclose that the claim was based on such opinions or otherwise more narrowly define "skin care," NAD recommended that the claim be discontinued.

CenturyLink, Inc.: CenturyLink Internet Service, Case No. 5763CII (Apr. 6, 2015). In this compliance matter, NAD examined CenturyLink's internet speed claims in comparison to Comcast following a September 2014 decision recommending that CenturyLink make its disclosures about the basis of its comparison—CenturyLink's fastest to Comcast's slowest service—more clear and conspicuous. Comcast reported to NAD that non-compliant commercials were continuing to air. In response, CenturyLink explained that two of its vendors had mistakenly continued to run otherwise discontinued commercials, but that the commercials had been pulled. Accordingly, NAD closed the compliance matter.

Takeaways for This Month

A lesson from this month's cases is that when making comparative claims—even claims based upon strong testing and other evidence—advertisers may run into problems if the advertisement isn't sufficiently clear in identifying which particular products and which particular attributes are being compared. Overly broad claims, or claims clarified by small, faint or separate disclosures, may be at risk of a successful NAD challenge. This holds true even when the data supports the intended claim; NAD will focus on potential consumer understanding, so advertisers should try to eliminate potential confusion about the basis for their comparisons.

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Other Articles in this Month's Edition:

• Bipartisan Bill Would Expand FDA's Reach Over "Personal Care Products" and Cosmetics
• CPSC Seeks Civil Penalties Against National Retail Chain
• EU Companies Beware! Communicating Erroneous Information Must Now Be Classified as 'Misleading Commercial Practice'
• EU Publishes 2014 RAPEX Report
• Risk Management: Thoughts on the NY AG's Investigation of Herbal Supplements
• European Commission to Launch a Market Sector Inquiry Into E-Commerce
• California Business Won't Accept Prop 65 Reforms Without a Fight

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