Advertisers in the Ring – A Roundup of This Month's Competitor Advertising Challenges: Unique Features and Outstanding Reviews – What Counts?

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 past month was a busy one at NAD, with a high volume of decisions published in comparison to prior months. Recent cases addressed a wide array of products, including dietary supplements, vacuums, sports drinks, and shampoos. A number of these cases tackled the issue of what makes a product special or different from a competitor—when can a product fairly be advertised as unique, special, or one-of-a-kind? What comparisons and disclosures are sufficiently clear to identify a unique feature without suggesting a categorical advantage? Other cases examined the use of on-line reviews and individual testimonials, and the danger of using such statements without sufficient reliability or back-up support.

So Special: When Can a Product Be Claimed as Offering Some Unique or Special Benefit?

Abbott Nutrition: Similac® Advance® with OptiGRO™, Case No. 5859 (June 18, 2015). Mead Johnson & Co, LLC, maker of a competing infant formula product, asserted that Abbott Nutrition's advertising for its OptiGRO Similac formula, including its claims of an "exclusive" and "unique" formula blend, suggested that Similac was the only infant formula to contain certain nutrients (DHA, lutein, and Vitamin E), and also suggested an overall superiority over competing brands. NAD disagreed, finding that the claims were purely monadic claims touting Similac's blend, rather than claims about the effects of individual ingredients or superiority to other products. Accordingly, NAD found Similac's claims to be reasonably supported.

Aspire Beverage Co.: Aspire Sports Drink, Case No. 5861 (July 8, 2015). The maker of Gatorade challenged advertising for Aspire sports drinks.  Aspire was advertised as the "clear choice for ... health, and better performance" and an "all natural" product in contrast to Gatorade's "empty calories" and "extra sugar." Gatorade contended that Aspire's advertising suggested that it was more healthful than Gatorade, and that Gatorade was harmful. NAD found that Aspire's claim to be the "clear choice" was unsupported, and also recommended that Aspire discontinue its claims that Gatorade contained empty calories and extra sugar and that Aspire was "all natural." NAD did, however, note that Aspire could appropriately claim to be naturally sweetened or flavored and could identify specific natural ingredients.

Vogue International, LLC: Proganix Line of Hair Care Products, Case No. 5864 (July 13, 2015). Procter & Gamble challenged Vogue's advertising for its Proganix line of hair care products.  Vogue advertised Proganix as including "high performance extracts up to 200x more potent than their raw natural state." Procter & Gamble alleged that Vogue's Proganix advertising suggested that the natural ingredients provided specific, unsubstantiated performance benefits. Consistent with its earlier decision involving Vogue hair care products (Vogue Int'l, Inc.: OGX Shampoos & Conditioners, NAD Case No. 5844 (May 8, 2015), NAD recommended that Vogue modify its advertising to avoid suggesting that specific exotic ingredients were responsible for providing the product's performance benefits. 

Dole Packaged Foods, LLC: Dole Fruit Bowls, Case No. 5868 (July 27, 2015). Del Monte Foods, Inc. challenged a Dole commercial touting Dole's fruit cup as "the only national brand packed in 100 percent juice" and stating that "[n]ational competitors primarily pack regular fruit cups in light syrup." The commercial depicted one woman draining the syrup out of her fruit cup, while a different woman with Dole fruit cup said "I drink it!" Del Monte asserted that the advertising conveyed the claims that Del Monte fruit cups were unsuitable for consumption and that all Dole fruit cups were packed in 100 percent fruit juice. NAD found that Dole's advertising did not disparage Del Monte's fruit cups, but "rather, conveyed the simple truthful message of a product difference." However, NAD did agree that Dole's advertising suggested that its entire line of fruit cups were packed in 100 percent juice, and recommended that Dole modify its advertising and product packaging to clearly and narrowly indicate the contents and identify the products that were packed in 100 percent juice.

Great HealthWorks, Inc.: Omega XL Dietary Supplements, Case No. 5870 (July 28, 2015). This case, part of NAD's Council for Responsible Nutrition initiative, reviewed the validity and support for the advertiser's claims that its Omega XL was an especially potent omega-3 fatty acid supplement that offered joint relief and was safe and free of the toxins potentially found in alternative forms of fish oil. NAD criticized the advertiser for claiming that its Omega XL product was a "breakthrough secret"—"a thirty-year old product cannot, by definition, be a ‘breakthrough secret.'" Nevertheless, NAD found that the claims of "over thirty years of clinical research" was supported by the existence of a 1980 test plus eight subsequent clinical studies and that claims of being "demonstrated" as a "powerful" joint health supplement were sufficiently supported by a "robust, randomized, placebo controlled" study. However, NAD recommended discontinuing claims of "no known drug interactions" that, while literally true, might imply the existence of a specific study regarding the safety of Omega XL when none existed.

Thumbs Up! Reviews & Testimonials Can't Stand Alone

Euro-Pro Operating, LLC: Shark Rotator Powered Lift-Away NV650 Vacuum, Case No. 5860 (July 6, 2015).  Dyson, Inc. challenged Euro-Pro's claims that its Shark Rotator vacuum received more 5-star online reviews and provided better suction power, hard floor cleaning and reach than Dyson vacuums. NAD noted the increased importance of on-line reviews, but cautioned that such reviews are "only as valuable as their authenticity as well as the transparency and accuracy in the means by which they are gathered and used." NAD concluded that Euro-Pro's exclusion of reviews from websites such as Target, Bed, Bath & Beyond, Costco, and others undermined the reliability of its calculations, and recommended discontinuing the 5-star claim. NAD also recommended discontinuing a bare-floor cleaning demonstration that neither followed the relevant ASTM standard nor provided a reasonable basis for using a modified standard. In contrast, NAD found that the Shark's unique feature of a detachable canister provided a reasonable basis for Euro-Pro's claim that its vacuum could reach locations that Dyson's could not.

Motherlove Herbal Company: More Milk Plus, Case No. 5865 (July 14, 2015). In this self-initiated matter, NAD reviewed advertising for a dietary supplement, Fenugreek, that was touted for its ability to "quickly increase breast milk supply." The advertising included testimonials such as "I had a whole day's worth of bottles in the fridge" and "I have more than doubled my supply!" NAD recommended discontinuing the increased supply and testimonial claims and reminded the advertiser that even when testimonials "represent the honest opinion of the endorser" the claims made in the testimonials still required independent support and that express performance claims required competent and reliable scientific evidence. NAD determined that the ingredient data failed to support the performance claims for the dosage available in the Fenugreek product.

Takeaways for This Month

A lesson from the cases of this month is that it is entirely possible to tout a special or unusual feature of your product, just as it is possible to share positive customer reviews and experiences, but that if such claims are made in an overbroad fashion without sufficient explanation, they may face successful challenges by competitors.

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Other Articles in This Month's Edition:

• Third Circuit Upholds the FTC's Authority to Regulate 'Unfair' Data Security Practices
• Senator Markey Introduces the SPY Car Act to Regulate Automotive Cybersecurity
• FDA Loses Battle to Limit Truthful, Non-Misleading Off-Label Promotion of Approved Drugs
• A Hashtag Away from a Warning Letter? Kim Kardashian's Instagram Post Triggers FDA Warning Letter that Sends a Strong Message to Drug Makers
• Got Lead? Significant Changes to Proposition 65's Lead MADL May Be on the Horizon
• An EU Logo for Safer Online Shopping for Medicines

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