Advertisers in the Ring – A Roundup of Recent Competitor Advertising Challenges: Enough Tailored Support for Direct Comparisons and Health Benefits?

Below, we provide a high-level summary of some of the NAD decisions reported in the past two months. A summary of NAD decisions from January can be found here.

Several decisions issued in the past month examined comparative superiority claims and/or claims of a health benefit associated with a product. In these cases, the outcome often rested upon whether support existed for the particular claim being advertised. The cases demonstrate how even “good” data may be insufficient if it does not reach the ultimate conclusion conveyed by the advertising in question.

Navigating Product Comparisons

In Rust-Oleum Corp.: Painter’s Touch Ultra Cover 2x Spray Paint, Case No. 5934 (Feb. 23, 2016), NAD took the unusual step of recommending not merely discontinuance of a claim, but of the product name itself. Sherwin-Williams challenged claims made by competing paint maker Rust-Oleum regarding its “Ultra Cover 2x” spray paint. Rust-Oleum described its product as offering “twice the coverage” and as a “2X formulation,” among other claims that repeated its “2x” claim. Yet, Rust-Oleum’s own testing showed that its product achieved twice the coverage “only 47 percent of the time against representative samples” and that results varied widely. Given the lack of evidentiary support and advertising that depicted “flawless 2X” coverage for its product compared to “insufficient” coverage by the competitor, NAD recommended that the 2X coverage claims – the product name included – be discontinued.

In SharkNinja Operating LLC: Shark Rocket DeluxePro, Case No. 5929 (Feb. 11, 2016), NAD was asked by challenger Dyson to examine SharkNinja’s claim that its DeluxePro vacuum provided “go anywhere versatility.” While NAD found that SharkNinja’s claim could be supported as a monadic claim based upon product maneuverability, NAD also found that a chart identifying “go anywhere versatility” as an attribute of SharkNinja’s DeluxePro when compared with Dyson’s V6 vacuum suggested that SharkNinja products could “go anywhere” in the same way. In reality, Dyson’s vacuum could “go anywhere” because it was cordless, while SharkNinja’s claim was based on maneuverability and the availability of certain attachments for a corded vacuum. Because the advertising did not make clear the difference between the two types of “go anywhere” claims, NAD recommended discontinuance of the comparative chart.

In another checklist comparison dispute, Case No. 5925 (Feb. 2, 2016), NAD found that a checklist comparing six performance criteria of one occupational safety product to another, giving the advertiser’s brand five red “x” marks compared to five green check marks for the challenger, should be discontinued. NAD further recommended that other comparative claims be modified to more accurately reflect the substantiation provided.

In Reckitt Benckiser, Inc.: Mucinex Fast Max®, Case No. 5921 (Feb. 1, 2016), Procter & Gamble (maker of DayQuil) challenged the maker of Mucinex for its advertising touting Mucinex liquid gels as the only brand offering “max strength” and fighting mucus, in contrast to DayQuil. Procter & Gamble argued that the advertising suggested that DayQuil did not offer any caplet product with mucus treatment and high strength, when DayQuil did in fact provide an option, although not as a liquid gel. The question before NAD therefore centered upon whether the basis of comparison – liquid gel to liquid gel – was adequately disclosed. NAD found the comparison sufficiently supported because the commercial specifically identified liquid gels by name in the first 3 seconds of the commercial, stated “liquid gels” additional times, and depicted an animated liquid gel image. Accordingly, NAD found that consumers would be sufficiently informed of the point of comparison. NAD did, however, recommend that Mucinex modify its claim to be the only brand of liquid gel offering this benefit, because a CVS private label product existed with the same strength and ingredients. At most, Mucinex could state that its “only” claim referred to competing brand name products rather than all products in the category.

In Church & Dwight Co., Inc.: OxiClean White Review, Case No. 5919 (Jan. 29, 2016), Clorox, makers of liquid bleach, challenged OxiClean advertising that described bleach as “scary” and advised “do not use chlorine bleach.” The advertising also touted OxiClean as having “40 percent more whitening power than chlorine bleach.” NAD agreed with the challenger that the ads, which included an anthropomorphic white shirt and asked “why is bleach so scary to clothes?” disparagingly implied that chlorine bleach would necessarily damage laundry. However, NAD determined that the phrase “do not use chlorine bleach” was sufficiently similar to actual wording on the clothing care label -- “only non-chlorine bleach, when needed” – that it was not misleading, because the claim clearly identified the clothing care label as its source. With respect to cleaning performance claims, NAD cautioned that its prior decisions, which had examined stain removal performance comparisons between OxiClean and chlorine bleach, did not control when the overall context of the advertisement conveyed a different take-away message. Here, NAD found that OxiClean had sufficient support for its claim to have “40 percent more whitening power,” but advised that if the shirt used in the demonstration portion of the ad had been pre-soaked to achieve the depicted results, then the ad should be modified to disclose the conditions on which the demonstration was based.

Charter Communications, Inc.: Advertising by Charter Communications, Case No. 5922 (Feb. 1, 2016) involved one of two cases this month about the impact of bad weather, in particular rain, on satellite TV service. In Charter, the advertiser relied upon a consumer satisfaction survey to make the claim, amongst others, that “one in four satellite customers claim they had reception outages in bad weather.” The ad also depicted problems occurring when it was “barely raining.” NAD found that the ad reasonably suggested that satellite service will be interrupted for one in four customers at the onset of mere drizzle. NAD also found that the survey responses that Charter relied upon often did not indicate what kind of weather, if any, was involved with a reported outage, let alone whether the weather was mild or severe. More fundamentally, NAD found that the advertisement suggested that the “one out of four” claim was based on objective data about service interruption occurrences, rather than upon subjective opinions about personal satellite television experience. Accordingly, NAD recommended that the bad weather claims be discontinued.

Comcast Cable Communications, LLC: Xfinity Cable Televisions Service, Case No. 5926 (Feb. 5, 2016) also involved an advertisement, this time by Comcast Cable, that criticized the performance of satellite TV during bad weather. Unlike Charter, Comcast did not claim any specific quantity of outages, but instead aired several different commercials that depicted satellite TV customers suffering the effects of a bad weather outage. Prior to the decision, Comcast voluntarily agreed to discontinue the wording “every time it rains” from its ads. Nevertheless, NAD found the overall message conveyed by an ad showing satellite reception immediately pixelating at the distant sound of thunder to be the unsupported claim that any bad weather would inevitably lead to interrupted service. In contrast, another ad in the same campaign depicted large storm clouds and stated “Xfinity is perfect for rainy days and for people who like reliable TV service rain or shine.” In that version, NAD concluded that Comcast only conveyed the possibility that bad weather could interrupt satellite TV service, a supported claim, rather than suggesting that any bad weather would automatically disrupt service.

High Hurdles for Health Claims

In American Dryer, Inc.: ExtremeAir CPC Commercial Jet Air Hand Dryer, Case No. 5916 (Jan. 5, 2016), Kimberly-Clark challenged claims in print and on-line videos made by American Dryer regarding its commercial hand dryers. American Dryer touted its product as one that “kills germs” with cold plasma technology, and was “proven” to kill E. coli, Salmonella, and a variety of other pathogens. NAD noted that, “[t]hese types of claims [establishment claims] are held to a very high standard of proof because in essence, [they] promise that there is scientific evidence that proves or 'establishes' the truth of the advertiser’s claims. Establishment claims of superior performance and/or efficacy must be supported by competent and reliable scientific evidence demonstration a statistically significant difference.” American Dryer offered testing conducted by two different outside labs, as well as a white paper and an expert opinion to support its claims. NAD agreed that evidence existed for cold plasma’s potential to decontaminate food contact services and medical instruments, but found that the testing offered failed to sufficiently support the actual claim in the ad: that cold plasma could decontaminate air entering and exiting the dryer and kill germs on human hands. NAD recommended that the ads be discontinued.

Another recent decision regarding health claims comes out of NAD’s appellate body, the National Advertising Review Board (NARB). NAD appeals are infrequent, and historically, the NARB panel of decision-makers tends to reach the same findings as NAD. In Novartis Consumer Health: Benefiber Fiber Supplements, NARB Panel No. 206 (Dec. 17, 2015), the NARB panel remained consistent with the earlier NAD decision. The advertising at issue involved the product Benefiber and the claim that it “helps maintain regularity.” Like NAD, the NARB found the claim to convey a meaningful health benefit related to the ease of stool output, and as such, was subject to the heightened “competent and reliable scientific evidence” standard. Also like NAD, the NARB panel concluded that the studies relied upon by Benefiber were insufficient to establish the claimed health benefit. (For instance, the studies most heavily relied upon were conducted in Japan, where the test subjects’ diets departed greatly from typical American diets.) Although the panel found the evidence was not sufficiently tailored to support the claim about the particular form of fiber used in Benefiber, NARB found that Benefiber could advertise the importance of fiber in the diet generally and convey other digestive health benefits of using the product.

11th Hour Forum Change

In addition to the substantive decisions issued this month, NAD also issued a decision regarding a procedural matter. In Chobani, LLC: Simply 100 Greek Yogurt and Chobani Greek Yogurt, Case No. 5923 (Feb. 1, 2016), Chobani’s claims about the sugar content of its yogurt as compared to competitors was challenged before NAD. However, before the NAD process could be completed, Chobani filed for a declaratory judgment in federal court. NAD stated that it was “extremely disappointed both with the advertiser’s decision to forego NAD’s review of these claims and the timing of the declaratory judgment action (i.e., just prior to the advertiser’s submission of its final response and scheduled meetings with the parties.)” NAD further noted that, although it had already expended significant time and expense, it would nevertheless administratively close the case pursuant to its procedural rules. NAD reserved the right to re-open the matter should the advertiser’s case be stayed or its motion otherwise denied.

Takeaways for This Month

A lesson from the cases of this month is that supporting evidence must not only be good quality, but also match the specific claims asserted in the advertising. To result in a favorable result at NAD, the evidence must be the right kind of evidence to support the claims explicitly stated and implicitly conveyed by the advertisement.

---

Other Articles in This Month's Edition:

• Knocking Out Class Actions After Campbell-Ewald: Can Defendants Still Control Their Destiny?
• Crumb Rubber in the Crosshairs: Focus on Artificial Turf Increases
• Health Canada Announces First Penalty Under CCPSA
• EU Launches Online Dispute Resolution (ODR) Portal for Consumers
• Court Denies Michaels’ Motion to Dismiss CPSC Penalty Enforcement Action and Finds that Failure to Report is a Continuing Violation
• European Commission Launches Review of EU Consumer Legislation

---