Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: How Much Support Is Enough?

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.

Recent cases addressed dietary supplements, itch and lice medications, and furniture cleaner. Several of these cases tackled the issue of how much evidence, or what specific kind of proof, is required when making establishment, medical efficacy, or disparaging claims—claims that tend to require more rigorous support. While most cases concluded with the usual concession by the advertiser that, agree or not, it would comply with NAD's determination, one advertiser took an atypically aggressive opposition position, and stated its intention to appeal.

What Counts As "Competent Reliable Scientific Evidence"?

Health Solutions, LLC: PhytoZon Supplements, Case No. 5840 (June 5, 2015). NAD reviewed claims made for the dietary supplement PhytoZon, which purportedly increased energy and helped with joint pain and flexibility. As part of its initiative with the Council for Responsible Nutrition, NAD examined over 20 claims about PhytoZon and its ingredients, including establishment claims like "proven effective results" and testimonials from former construction workers and marines who claimed to experience dramatic results from using PhytoZon supplements. The claims even included a citation to NAD itself, saying that NAD found the compound to be "a breakthrough" and an "all natural treatment for joint pain." In response to the NAD inquiry, the advertiser agreed voluntarily to permanently discontinue all of the challenged claims. As a result, NAD did not analyze the specific claims in the decision.  Had it done so, NAD would almost certainly have recommended discontinuing the specific reference to a prior NAD decision, given that NAD rules forbid the use of its favorable decisions in advertising.

Institute for Vibrant Living: Alleviate, Case No, 5852 (June 10, 2015). This decision also arose from the Council for Responsible Nutrition initiative. The supplement Alleviate was advertised as an "ancient herbal medicine" for soothing joint pain and inflammation.  Some of the claims suggested that the supplement could be a potential alternative to surgery: "I am out of my wheelchair thanks to Alleviate ... I was to have a total right knee replacement ... I canceled it." NAD ultimately concluded that the advertiser had a reasonable basis for its claims that the Vitamin C in Alleviate supported antioxidant protection against free radical damage, that the ingredient salicin has been used for centuries to reduce swelling in arthritic joints, and that a recent study showed the ingredients in Alleviate might relieve knee and back pain. NAD recommended that the advertiser discontinue 18 other claims, such as "fast-acting," "increased overall mobility," "lubricates joints," and similar claims, because it found that the support provided by the marketer—all of which was for specific ingredients rather than the overall Alleviate formula—did not constitute "competent and reliable scientific evidence."

Scratching the Performance Claim Itch

Cosmederm Biosciences, Inc.: TriCalm, Case No. 5853 (June 10, 2015). In this case, the maker of Cortizone-10 anti-itch cream challenged claims made for an alternative anti-itch remedy. The advertiser described its anti-itch product as "doctor recommended" and as "5 times more effective than 1 percent hydrocortisone in reducing itch." The studies upon which the advertiser relied to make its comparative claims did not test the competing products directly, but instead used a model assessment of effective anti-itch agents. The challenger agreed that the assessment was appropriate to evaluate agents for efficacy, but disagreed that it could be relied upon to affirm the comparative claim at issue. NAD noted that TriCalm's active ingredient was only indicated for minor skin irritation relief, not itch relief, in the associated FDA monograph. Because Cosmederm's claims went beyond the monograph and because the advertiser did not have the robust clinical testing that NAD believed to be necessary in light of the strong, comparative nature of the claims, NAD recommended that the claims be discontinued. Disagreeing with NAD's decision, the advertiser described it as "merely a regurgitation of the challenger's arguments" and stated its intention to appeal the decision to the NARB. 

Tyratech, Inc.: Vamousse Lice Treatment, Case No. 5854 (June 17, 2015). The "itch" theme continued, this time in connection with an over-the-counter lice treatment. The advertiser claimed that its product would "kill 100 percent of resistant head lice." NAD agreed with the challenger's concern that this claim was particularly impactful because of a recent increase in reports of head lice resistant to normal over-the-counter remedies and because of increasing numbers of schools with "zero nit" policies for allowing children to return to school. The claims of "100 percent" and the ability to kill "resistant" lice spoke directly to these key purchase motivators. Because the advertiser's claims were based only upon in vitro tests, NAD found the efficacy claims to be unsupported. However, NAD found the advertiser had a reasonable basis to describe its product as "pesticide-free" and found that claim did not create any sort of comparative implication that other products were unsafe.

Disparager Beware

Telebrands, Inc.: Amish Secret Furniture Cleaner, Case No. 5858 (June 18, 2015). In this case, S.C. Johnson & Son, Inc. challenged a competing furniture cleaning product for claiming that "furniture polishes are a nasty, greasy mess" and urging consumers to "forget oil sprays, Amish Secret cleans layers of built-up wax, revealing the fresh, lasting shine without leaving a sticky, oily residue." Because the advertiser agreed to voluntarily discontinue these and other claims about its furniture cleaner, NAD did not determine what, if any, support existed for the claims. The case serves as a reminder that NAD will closely scrutinize claims that directly disparage competing products. Such claims must be truthful, accurate and narrowly drawn.

Takeaways for This Month

This month's cases reinforce the message that more aggressive marketing claims—whether for 100 percent efficacy, dramatic physical improvements, or negative results caused by competing products—will be closely examined by NAD for sufficient substantiation. Advertisers are not barred from making aggressive comparative or performance-based claims, but they should be prepared to have proportionally significant support for such claims.

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Other Articles in this Month's Edition:

• Brand Protection on the Internet: Ninth Circuit Decision Revives Doctrine of Initial Interest Confusion
  
• The European Trademark Reform: Key Changes Brand Owners Need to Know
• Contests and Sweepstakes Update

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