The maker of Tom's of Maine antiperspirants and deodorants plans to appeal to the National Advertising Review Board after the National Advertising Division recommended it discontinue "Natural" claims.
Competitor Unilever challenged The Colgate Palmolive Company's express claims for the Tom's "Naturally Dry" line including "It really works. Naturally." and that the ingredients in the products "meet our stewardship model for safe, effective, and natural."
To qualify as an antiperspirant under the Food and Drug Administration's definition, products must contain one of several aluminum salt-based active ingredients for wetness control, Unilever argued, and the aluminum chlorohydrate used in the advertiser's Naturally Dry line is not natural but commercially manufactured by reacting aluminum ingots with hydrochloric acid under controlled conditions.
Before reaching the merits of the dispute, Tom's of Maine argued that the NAD lacked jurisdiction over the action because a court order was in place resolving a consumer class action on identical claims that were subject to ongoing court supervision.
In that case, the company agreed to pay $4.5 million to plaintiffs who alleged Tom's ran afoul of multiple state consumer protection laws and warranty statutes by using the term "natural" for various personal care products, including deodorant.
NAD Rule Section 2.2(B)(i)(b) provides that the self-regulatory body should administratively close a proceeding where the advertising claims are "the subject of pending litigation or an order by a court." Tom's noted that it changed its labeling and advertising as a result of the litigation and that a Florida federal court entered an order granting final approval of the settlement agreement.
But the settlement order "does not address the claims at issue in the litigation and does not make specific findings as to the claims challenged by Unilever," the NAD wrote. The judge did not evaluate the evidence and the truthfulness of the advertising claims. Instead he balanced the costs and risks of litigation for a determination as to whether the deal on the table was fair.
The NAD "Procedures preclude jurisdiction when the challenged claims are subject to a court order, not when litigation has challenged certain claims and the litigation is resolved through a settlement agreement even if the settlement agreement is subsequently ordered by the court," the NAD said.
Having established jurisdiction, the NAD turned to the claims at issue. Tom's argued that the use of the "natural" language was truthful, accurate, and not misleading to consumers. The company uses recycled aluminum wire to source the aluminum chlorohydrate used as their active ingredient in the Naturally Dry line, the advertiser said, and Tom's stewardship model includes a definition of "natural" that reflects this fact. Consumers are told exactly what the advertiser means by the term "natural" on the company's website. The product packaging also refers the customer to the site for more details.
Noting that Tom's is the only company that markets an antiperspirant as "natural," the NAD found the claim to be unsubstantiated as the active ingredient in the product—aluminum chlorohydrate—is not natural. "When the active ingredient (here the ingredient that provides the dryness) is not natural, but extensively chemically processed, consumers can be misled particularly where, as here, the product states that natural ingredients are responsible for the product's effectiveness."
The NAD was not persuaded that the possibility of misimpression was cured by the statement on product packaging directing consumers to the company's website for its definition of "natural" and information about its stewardship model. "NAD has routinely held that the consumers should not have to search to learn more about the limitations on an advertising claim," according to the decision. "If a claim needs to be qualified to prevent it from being misleading, any disclosure should be clear and conspicuous and found within the four corners of the advertising in which the claim appears."
Further, there is no evidence in the record that Tom's definition of "natural" is consistent with consumers' understanding of the term, the NAD added.
While the self-regulatory body was cognizant of the burden placed on the advertiser because the decision impacted the product name, it recommended that the claims "natural" and "Naturally Dry," appearing both in advertising and product packaging, be discontinued to avoid conveying "an express message that natural ingredients are responsible for the dryness provided by this antiperspirant, a message that is not supported."
Nothing in the decision precludes Tom's from "touting its use of natural ingredients in the product, including claims that the antiperspirant uses natural fragrances, does not contain preservatives, and that aluminum salt (that provides wetness protection) is derived from recycled aluminum," the NAD noted.
To read the NAD's press release about the case, click here.
Why it matters: The NAD emphasized two points for advertisers in the decision: Ingredients that are derived from nature and undergo significant chemical alternations are often not "natural" in the way that consumers expect them to be. The self-regulatory body also explained that its procedures only preclude jurisdiction "when the challenged claims are subject to a court order," not where litigation has challenged certain claims and the case is then resolved through a settlement agreement. Tom's of Maine disagreed, and requested in the advertiser's statement that the dispute be referred to a panel of the NARB for review of the NAD's exercise of jurisdiction.