SAMPLE ISSUE

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BULLETIN #701

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NAD INVESTIGATIONS: RECENT HIGHLIGHTS

LATEST CASES

Advertisers cooperate with the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc., to resolve challenges to their national advertising. You should be aware of the latest NAD cases because of the helpful advertising compliance information found in these decisions. The following article contains representative examples of NAD cases in these three categories:

I. PET MEDICATION CLAIMS–Here is a recent case involving this type of claim:

Merial Limited. NAD recommended that Merial Limited should modify or discontinue certain advertising claims for the product. Merial Limited is the maker of the pet medication Frontline Plus. The advertiser has said that it will appeal certain findings by NAD to the National Advertising Review Board (NARB).

NAD examined express and implied superiority claims made in print and point-of-sale advertising and in promotional materials. This came about after a challenge by Elanco Animal Health. Elanco Animal Health is a competing maker of flea-control products.

The express claims at issue included:

• Comfortis does not provide "complete flea control" because Comfortis, unlike Frontline Plus, does not kill flea eggs, flea larvae, and ticks.
• "Why settle for flea products that don't kill eggs and larvae?"

NAD also looked at implied claims that included:

• Frontline Plus is more effective than Comfortis, or in the alternative, that Comfortis is not effective.
• Frontline Plus is the only product to kill each of the listed flea stages.
• Fleas do not bite Frontline Plus-treated dogs and that fewer fleas bite dogs treated with Frontline Plus than dogs with Comfortis.

NAD's recommendation: The advertiser should discontinue the unsupported "complete" and "incomplete" flea protection claims. Additionally, NAD recommended that the advertiser should avoid future ads containing similar comparative claims that fail to make the basis of comparison clear--Frontline Plus is formulated for flea control for dogs and cats while Comfortis is formulated for flea control for dogs.

In addition, NAD recommended that the advertiser–when referencing Frontline Plus for cats or dogs–should show both products and expressly disclose that the products should not be used interchangeably.

NAD found that the comparative speed-of-kill claims at issue were not substantiated. So NAD recommended that they ought to be discontinued.

NAD pointed out that claims that reference the efficacy of Frontline for "more than 30 days," were approved by the Environmental Protection Agency (EPA). NAD attempts to harmonize its decisions with relevant regulatory authority. Accordingly, NAD deferred to EPA as to the claims' accuracy.

Next NAD reviewed advertising directed to veterinarians. NAD found that the advertiser could not back up claims that reference consumer "confusion" about the differences between Frontline Plus and Comfortis or claims that Frontline Plus is the most requested product by clients.

So NAD recommended that the advertiser should discontinue those claims.

But NAD found that a reference to thanking veterinarians "for your help in killing more fleas and ticks - and making pets happier and healthier" would not be interpreted as a superiority claim.

Finally, NAD recommended that when making comparative safety claims, the advertiser fully disclose the side effects associated with the use of Frontline Plus.

In its advertiser's statement, this advertiser took issue with NAD's findings and said that, with two exceptions, it will appeal NAD's findings to the NARB.

The company will not appeal NAD's findings as to thanking vets "for your help in killing more fleas..." or NAD's finding as to the chart within its vet-directed advertising that compared the products' speed of action. The company said it will take NAD's recommendations into account "in any future advertising on such claims."

(Merial Limited, NAD Release, September 30, 2010.)

II. PERFORMANCE SUPERIORITY CLAIMS–Here is a recent case involving this type of claim:

Procter & Gamble. NAD recommended that this advertiser should modify certain advertising claims for Pamper's "Dry Max" diapers.

NAD looked at advertising claims and product demonstrations in TV commercials and retail point-of-purchase displays. This occurred after a challenge by the Kimberly-Clark Corporation, a competing manufacturer of disposable baby diapers.

The claims at issue included:

• "20% Thinner than HUGGIES."
• "2X DRIER."

The ad campaign at issue introduced the advertiser's new line of Pampers Cruisers diapers with Dry Max technology.

NAD said that the advertiser provided a reasonable basis to back up the express claims "20% Thinner" and "2X DRIER." So NAD's focus was on whether the claims–in the context in which they appeared–implied greater performance superiority than the evidence supported and whether the advertiser's visual demonstrations accurately portrayed the differences between the competing products.

The challenged commercial featured an animated "rewet" sequence to illustrate the advertiser's "2X DRIER" claim. In that sequence, 75 milliliters of wetting solution was poured on competing diapers. And a ball was rolled across the diapers to show the resulting wet spots.

NAD pointed out that the wet spot on the HUGGIES ball was six times larger than the spot on the Pampers ball. Moreover, NAD noted, the animated sequence didn't accurately reflect the actual product testing that supported the advertiser's express claim, during which each diaper was dampened or "rewetted" three times during a 15-minute period. While the advertiser voluntarily modified the animated sequence, NAD recommended further modifications.

NAD concluded that at least one interpretation of the advertiser's "2X DRIER" claim is that there is a dramatic difference between the products as to rewet performance--a message not supported by the advertiser's evidence.

NAD recommended that the advertiser should:

• either modify the claim to make clear the actual difference in performance or discontinue the use of a qualifier and simply make a "drier" claim.
• discontinue the depiction of comparative stacks of competing diapers, used to demonstrate the 20% difference in thickness.

In its advertiser's statement, Procter & Gamble said it supports the self-regulatory process, adding:

"With regards to the context in which these claims appear, and the visuals used to illustrate the same, Procter & Gamble intends to take NAD's recommendations into account in developing future advertising."

(Procter & Gamble, NAD Release, September 30, 2010.)

Article Continues Below

III. QUANTIFIED PERFORMANCE CLAIMS–Here is a recent case involving this type of claim:

Celsius, Inc. NAD found that this advertiser provided adequate substantiation to substantiate certain advertising claims–as modified during the course of NAD's review–for its Celsius supplement beverage. But NAD recommended that the advertiser should discontinue certain quantified performance claims.

NAD examined print and Internet advertising for Celsius. The claims as issue included:

• "Recent scientific studies showed that Celsius burns fat as fuel and may increase lean muscle tissue when consumed before exercising."
• "Celsius burns calories without sacrificing taste. Celsius is designed to be a healthier alternative."
• "Good for you ingredients, such as Green Tea with EGCG, Ginger, Calcium, Chromium, B vitamins, and vitamin C, all which work together to raise metabolism, resulting in a sustained calorie burn while keeping you energized."
• "114% greater decrease in body fat"
• "79% greater endurance performance"
• "32% greater resistance to fatigue (increased energy)"

NAD pointed out that the advertiser said that it had modified most of the challenged claims for Celsius. This included claims made on packaging and labeling.

NAD found that certain claims, as modified, were supported by the advertiser's evidence, as long as those claims are presented in the context of advertising geared to people who exercise and make clear that achieving the promised benefits of the product requires exercise. NAD found the advertiser could back up claims that referenced the taste of Celsius and the product's ingredients and claims that Celsius supplementation results in "increased metabolism" "calorie burning" "fat loss," "decrease in body fat," "greater endurance performance," and "greater resistance to fatigue (increased energy)."

NAD recommended that the advertiser should modify the claim that "Multiple studies have shown a single serving of Celsius on average burns up to 100 calories or more by raising metabolism over a three hour period, generating increased energy and alertness," to a more general claim that Celsius combined with exercise, can burn calories.

NAD also found that the modifications made by the advertiser to its packaging and advertising materials helped to convey the "exercise" message, and were necessary and proper.

Additionally, NAD recommended that the advertiser should discontinue the specific percentage claims, claiming (e.g., "78% greater fat loss") and "5.5 lbs of Fat Loss," since they're based on the results of a single study and overstate the benefits achieved.

In its advertiser's statement, the advertiser said it "accepts NAD's decision as demonstrated by Celsius' current advertising that already implements NAD's recommendations." The advertiser noted that it will take NAD recommen- dations into account in future advertising.

(Celsius, Inc., NAD Release, September 30, 2010.)

LAWYER's REFERENCE SERVICE

Merial Limited, NAD Release, September 30, 2010.

Procter & Gamble, NAD Release, September 30, 2010.

Celsius, Inc., NAD Release, September 30, 2010.

By citing the NAD Reports, the Service in no way endorses or criticizes the NAD actions or findings.

 

Volume XXX
Issue 21
November 1, 2010
Page 19-26

 

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Advertising Compliance Service is a REFERENCE COMPENDIUM of JLCom Publishing Co., L.L.C.

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NOTICE: This publication is not intended to provide legal advice. Persons who need legal services should contact a duly licensed professional.

 

© Copyright 2010-2012 JLCom Publishing Co., L.L.C. All rights reserved.

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