Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: the Importance of Syncing Test Results to Claims

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.

The NAD decisions this past month examined a number of supplements, including nasal sprays, fiber supplements, hair treatment, and ear health aids. NAD also examined clothing, batteries, and vacuums. Many of the cases focused on the validity of supporting studies, and in particular whether the cited studies truly substantiated the claim at issue. Others served as reminders that implied claims and reviews/testimonials do not provide an end-run around the requirement to substantiate performance claims. In addition, NAD revisited the issue of "up to" claims.

Study Findings Must Support the Specific Claim, Not Just the Product Generally

Novartis Consumer Health, Inc.: Benefiber, Case No. 5873 (August 13, 2015). In this case, the maker of the fiber supplement Metamucil challenged competitive advertising for Benefiber that touted Benefiber's ability to "help[] maintain regularity." NAD identified this claim as a health claim, and therefore one requiring competent and reliable scientific evidence of consumer-relevant benefit. Specifically, NAD described this as a "structure/function" health claim because the advertised benefit related to the composition and action of the product on bodily function: fiber and its ability to impact regularity. Upon review, NAD determined that Benefiber's regularity claims were not sufficiently substantiated because of flaws in the various cited studies. NAD found the studies to be insufficient because they (i) showed no significant improvement in regularity; (ii) showed prebiotic qualities without showing regularity; (iii) involved test subjects with diets dramatically different than typical American diets (Japanese); or (iv) tested a different form of fiber that was not sufficiently similar to the fiber used in Benefiber. Ultimately, NAD found that the tests did not support the claim being made.

Chattem, Inc.: Nasacort, Case No. 5874 (August 25, 2015).  Here, the maker of nasal allergy symptom reliever "Flonase" challenged advertising for competing product "Nasacort." Nasacort advertising claimed it was preferred over Flonase in a "head-to-head clinical study." Because Nasacort based its preference claim on sensory attributes, NAD relied upon ASTM E-1958 (Standard Guide for Sensory Claim Substantiation) to evaluate the validity of the supporting study. When analyzed through the lens of the ASTM, NAD found flaws in the Nasacort study:

• • the inclusion of non-user subjects (here, non-allergy sufferers)
  • the insufficient sample size (99 subjects) to support a superior preference claim;
  • the absence of a "no preference" option in the study questions; and
  • the absence of a "why?" question regarding the reason for the selected preference.

For these reasons, NAD concluded the study could not support the preference claims at issue.

Implied Performance Claims Require Concrete Support

Eddie Bauer, LLC: MicroTherm StormDown Jacket, Case No. 5875 (August 25, 2015). NAD brought this case as part of its routine monitoring, rather than in connection with a competitor's challenge. The focus of the case was Eddie Bauer's claim that one of its down jackets was "Lightest. Warmest. Guaranteed." Eddie Bauer defended its claims of "lightest" and "warmest" as puffery claims, and argued that the claim conveyed a message about the combination of warm down insulation and light weight. NAD disagreed, finding that one reasonable interpretation of the claim would be that the jacket is the lightest and the warmest on the market. Unqualified superiority claims such as this would require testing against a substantial portion of the market—"usually 80 percent." As the advertiser did not have this kind of performance testing, NAD recommended that the claim be discontinued.

Lang Pharma Nutrition, Inc.: CVS Hair Nourishing Supplement, Case No. 5881 (September 2, 2015). Here, Lifes2Good, Inc., maker of Viviscal, challenged claims made by competitor Lang Pharma Nutrition, Inc. for its CVS hair nourishing product. Specifically, the advertising stated "compare to Viviscal" and showed a comparison chart of the ingredients in each product. The advertising also touted the CVS product as "scientifically formulated." NAD agreed with the advertiser that the "compare to" claim was an invitation for consumers to try its product and was sufficiently physically separated from the performance claims on the label that it was not making an implied parity claim. Nevertheless, NAD concluded that consumers would be unlikely to have the necessary information to make an informed comparison on their own and could be misled into believing that the products were at parity because of their similar ingredients, despite the fact that only Viviscal had been subject to clinical efficacy testing. Thus, when taken as a whole, NAD recommended discontinuing the "compare to" claims in this context.

Testimonials and Reviews Cannot Replace Performance Substantiation

Clarion Brands LLC: Lipo-Flavonoid® Plus, Case No. 5879 (August 31, 2015). In this case, NAD examined claims that a dietary supplement—Lipo-Flavonoid—improved circulation in the ear and reduced ear ringing issues. Like its decision in the previous month in Motherlove Herbal Company: More Milk Plus, Case No. 5865 (July 14, 2015), NAD advised that specific performance messages conveyed by testimonials require independent substantiation. Here, NAD recommended that testimonial claims promising that Lipo-Flavonoid would reduce or eliminate tinnitus be discontinued. Similarly, NAD recommended that a "#1 ear doctor recommended" claim be modified to make it clear the recommendation was in support of the product as an "adjunct therapy" and not necessarily as standalone relief for tinnitus and other ear conditions.

"Up to" Claims

The Procter & Gamble Company: Duracell Coppertop & Duracell Quantum Alkaline Batteries, Case No. 5876 (August 26, 2015). In this case, NAD addressed the continued hot topic of "up to" claims. Here, the comparative "up to" claim related to how long battery brands would last. Specifically, the advertising included the claim that Duracell was "up to 35 percent longer lasting vs. Energizer Max." NAD agreed that the advertiser's testing showed that 15-20 percent of its batteries would provide the claimed benefit and found that level of performance to be sufficient to meet NAD's "appreciable number" standard for making a valid "up to" claim. However, NAD believed that, without a sufficiently clear disclaimer, consumers could be misled about the likelihood that they would obtain the benefits described. NAD found that Duracell's disclaimer that battery performance "may vary by device and usage" was adequate on its product packaging, but that certain point of sale materials and other advertising, including television advertising, did not show the disclaimer in a sufficiently clear and conspicuous fashion. For instance, for the disclaimer to be clear and conspicuous in television commercials, NAD recommended that it be used as part of the main claim.

Takeaways for This Month

A lesson from this month's NAD cases is that tests that provide favorable results, and testimonials or reviews that make favorable statements are a potential first step, not the conclusion, of claim substantiation. Care must be taken that test design and results align with the claim ultimately selected for use in advertising.

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Other Articles in This Month's Edition:

• California Changes Its 'Made in the USA' Labeling Standard
• Back to the Future: Manufacturers' Warranties May Go Digital with Updates to the Magnuson-Moss Warranty Act
• FDA's Menu Nutrition Labeling Rule May Have the Unintended Consequence of Preserving the Status Quo
• R-E-V-E-R-S-A-L Spells Reversal! The Sixth Circuit Holds Varsity Brands' Cheerleading Uniform Designs to be Copyrightable
• Landmark EU Court Judgment on the Notification Requirements for Substances of Very High Concern
• Identifying Endocrine Disruptors in the European Union
• Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: the Importance of Syncing Test Results to Claims

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