Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: Favorable Test Results Provide the Ceiling, Not the Floor, for Claims of Competitive Advantage

Below, we provide a high level summary of NAD decisions from the past month, as well as discussion of a notable National Advertising Review Board (NARB) appeal. A summary of last month's NAD decisions can be found here.

Cases this month addressed products ranging from allergy medicine to water filters, soap to whey protein. This month included a number of wins or partial wins for advertisers based on the strength of their test data, but NAD still recommended a number of ads be discontinued or modified, in particular where the resulting message from the advertisement went beyond the scope of actual test results, or too aggressively denigrated a competitor's product.

The NARB appeal also included a partial win for an advertiser, marking a departure from NARB's historical tendency to wholly affirm NAD findings. Like many of the NAD decisions this month, the NARB decision rested on the quality of the advertiser's testing and the extent to which the advertising claims were sufficiently supported by, and tailored to, the results.

Express Comparative Claims Supported by Strong Studies Survive, But Implied Claims Exaggerating Study Results Do Not

Procter & Gamble Co: Crest Sensi-Stop Strips®, Case No. 5828 (April 8, 2015). GlaxoSmithKline Consumer Healthcare (GSK), maker of toothpastes formulated to reduce tooth sensitivity, brought this challenge against a new product, Crest Sensi-Stop Strips made by Procter & Gamble Company (P&G). GSK challenged P&G's claims that its new product offered "immediate relief"; "up to one month (30 days) protection" and a "breakthrough way to help stop sensitivity." GSK argued that clinical studies showed the effectiveness of the ingredients used in the strips was unproven. NAD concluded that the four clinical studies P&G provided in support substantiated its "immediate relief" claims and its "up to 30 days" claim, but recommended that P&G modify the "up to 30 days" claim to clearly indicate that some reported shorter periods of relief.  NAD further found in favor of P&G's "breakthrough way to help stop sensitivity" claims, noting that the commercial clearly conveyed that the product breakthrough related to its being the first over-the-counter strip format for combating tooth sensitivity. 

Bayer HealthCare, LLC: Claritin and Claritin-D, Case No. 5829 (April 8, 2015). The advertising in this challenge directly compared Claritin-D to competing allergy medication, Nasacort. Although NAD found the express claims in the commercial that "Claritin-D . . . starts to work on allergies in 30 minutes" while "Nasacort . . . could take up to a week to feel maximum nasal relief symptoms," to be literally true and supported, NAD still found that the way the claims were expressed resulted in additional, unsupported messages being conveyed.  Specifically, the claims suggested that Nasacort might not provide any noticeable relief for up to a week, when the data only supported the claim that Nasacort might take a week to achieve maximum effectiveness. Accordingly, NAD recommended that the claims be discontinued. Similarly, NAD recommended the claim of "nothing works faster than Claritin-D" be discontinued due to lack of adequate support. However, NAD found that the claim" #1 doctor recommended" was adequately supported based upon a large scale survey of physicians. 

The Procter & Gamble Company: Olay® Ultra Moisture Beauty Bar, Case No. 5830 (April 10, 2015). P&G claimed that "even Dove bar users prefer Olay" and that "more women preferred the Olay product versus the leading white bar." Here, NAD agreed that a survey of women using the products at issue was the appropriate way to determine consumer preference, but concluded that P&G's study design was not sufficiently reliable because its sample universe did not reasonably define regular Dove users, results from actual regular users constituted too small a sample size, and the overall preference results failed to meet ASTM standards for an unqualified preference claim. NAD recommended the "even Dove bar users" claim be discontinued, and that the claim "more women prefer" be modified to state "among those who expressed a preference." In contrast, NAD disagreed with the challenger's additional concern that the accompanying claims that "Olay Moisture delivers deep moisturizers . . ." conveyed implied comparative claims about specific attributes or went so far as to suggest that Dove offered no benefits.  NAD found the challenger's consumer perception survey to be unreliable on this point.  Rather, NAD found these claims to be limited, monadic claims about the Olay product attributes alone.

Iovate Health Sciences International, Inc.: Six Whey Protein Plus, Case No. 5831 (April 14, 2015).  In this decision, NAD reviewed claims about a dietary supplement as part of its initiative with the Council for Responsible Nutrition, not in response to a challenge brought by a competing dietary supplement maker. NAD found that claims about the whey protein product, such as "scientifically shown to build 70 percent more muscle" were adequately supported by a peer-reviewed published clinical study using a randomized, double-blind placebo controlled clinical trial with 36 male participants. NAD did recommend that the advertiser add qualifying language to some of its claims to clearly indicate the basis of the support, for instance identifying that the testing was ingredient-based. 

Helen of Troy Ltd.: PUR Water Filter, Case No. 5833 (April 21, 2015). In this case, the maker of Brita water filter pitchers challenged advertising for PUR water filter pitchers claiming to have "max ion technology." The commercial also showed a humorous comparison between Brita and PUR pitchers in which a fictional "water critic" compared using Brita pitchers to using broken reading glasses, and reviewed Brita as receiving "no stars." NAD concluded that the claims about "max ion technology" were substantiated, but recommended that the commercial, even if humorous, should be discontinued because it might mislead consumers to believe that Brita offered no benefit at all.

The Clorox Company: Clorox® Regular Liquid Bleach, case No. 5834 (April 22, 2015). In this decision, NAD examined claims that Clorox bleach eliminated stains better than OxiClean, an express comparative claim made in conjunction with a side by side demonstration depicting results after washing spaghetti stained t-shirts. NAD concluded that the claim and the demonstration should be discontinued, because they were based on testing which excluded pre-soaking, when OxiClean's instructions for tough stains specifically called for pre-soaking. As such, despite having tested a variety of different kinds of stains, the results were not sufficiently reliable to make the broad superiority claim.  However, NAD noted that Clorox was still free to advertise the proven benefits of its products, for instance that it required no pre-soaking to tackle difficult stains.

Berry Plastics Corporation; Versalite Polypropylene Cups, Case No. 5835 (April 22, 2015). In this matter, a manufacturer of competitive food service products challenged the maker of Versalite polypropylene cups for advertising them as "fully recyclable" and "environmentally responsible." NAD found the "fully recyclable" claim was adequately supported by testing showing that the cup would be treated and sorted like other propylene products and could therefore by recycled by a majority of U.S. households. The NAD also found that the "environmentally responsible" claim was supported, but that the advertiser's website failed to clearly indicate that the claim referred to the recyclable nature of the end product, rather than the broader processes of the company as a whole, and therefore needed to be modified to clarify the specific aspect of the product that was "environmentally responsible."

On Appeal, NARB Finds Advertiser Study Sufficiently Reliable, Disagreeing with NAD

Philosophy, Inc.: Time in a Bottle Age-Defying Serum, NARB Panel No. 198 (Feb. 24, 2015). In the underlying case, NAD acted in its monitoring capacity to request substantiation from Philosophy, Inc. for several claims about its age-defying serum. Specifically, NAD questioned Philosophy's support for claims that "women told us their skin looked 730 days younger"; "defy the appearance of all major signs of aging" and "help your skin appear radiant, wrinkle-free, poreless . . ." Philosophy's claims were based upon the results of an independent clinical study completed by 117 women over a period of six months. The study included visual assessments, imaging analysis and self-assessment questionnaires. NAD found that the study failed to support the claim that "women told us their skin looked 730 days younger." In contrast, NARB thought the study supported the claim to the extent it could be modified to indicate that the "younger" opinion was expressed by 60 percent of the women. The NARB concluded that "individuals are capable of recognizing how their appearance changes over time and it is appropriate for questionnaires to explore perception of those changes." With respect to the claim of "defy[ing] all major signs of aging" and claims about specific attributes, NAD again found Philosophy's study to be unreliable, in this instance because it took place over six months, during which results could have been influenced by changes in weather conditions. The NARB disagreed, finding that while the study did not support the claim as stated, that it did support a claim that the product helps to improve the appearance of skin with respect to the listed attributes. As a result of the appeal, Philosophy's claims survived in modified form, rather than being recommended for discontinuance.

Takeaways for This Month

A lesson from this month's cases is that strong test results showing a comparative advantage of your product over another can provide powerful support for appropriately tailored claims, but when comparatively favorable results are used as a basis to make sweeping claims of superiority, or to imply unconfirmed flaws or lack of benefit in the competitor's product, the advertising will not survive challenge even if the express statements are literally supported by the data.

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Other Articles in this Month's Edition:

• U.S.D.A. Announces Plans to Implement a Non-GE Verification Program
• NHTSA to Accelerate Rulemaking for Vehicle-to-Vehicle Technologies
  
• European Court Expands Product Liability Exposure for Medical Device Producers
• The ECHA Expects Up to 70,000 Registrations of Little Known Chemicals by 2018

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