The National Advertising Division (NAD), the investigative unit of the advertising industry’s system of self-regulation, recommended that Vogue International, Inc., modify the product names for its OGX line of shampoos, conditioners, and other hair care products as a result of a challenge brought by competitor Unilever.
Unilever argued that Vogue slipped the name of an exotic ingredient into product names next to a descriptive term to give the impression that the ingredient was present at a level that provided a real consumer benefit. They included “Renewing Argan Oil of Morocco Shampoo” and “Nourishing Coconut Milk Shampoo.”
Although the advertiser countered that the names were accurate descriptions of the products’ ingredients and functionality, it also advised that it was in the process of revising its packaging.
The NAD considered whether the link between the ingredient name and descriptor in the product names conveyed an express message about the benefit of the product. After rejecting a consumer perception survey submitted by Unilever, the NAD relied upon its own expertise and found that an express claim was conveyed by placing the exotic ingredient adjacent to the descriptor.
“The direct linking of an ingredient to a purported benefit, NAD determined, conveys an express message that the Argan Oil in the product provides a renewing benefit,” according to the decision. “The same is true for other OGX products like Anti-Breakage Keratin Oil Shampoo and Nourishing Coconut Milk Shampoo, which directly describe the performance benefits provided by the exotic ingredients. While Vogue should be free to tout the performance benefits of the exotic ingredients in its shampoos, it should avoid tying those ingredients to specific performance benefits unless it can demonstrate that the ingredient provides that benefit.”
Vogue declined to provide testing to establish the precise amount of each ingredient in its products, so the express claim was unsupported, the NAD said.
Although the NAD acknowledged the burden of changing product names, the decision recommended that Vogue change the names of OGX hair care products to make it clear that the product ingredients, taken together, provide the claimed benefits. The NAD suggested, as examples, “Renewing Shampoo with Argan Oil” or “Nourishing Shampoo with Coconut Milk.” However, the NAD noted that it was not mandating particular names but recommending that the advertiser change the product names to avoid claiming expressly or impliedly that the exotic ingredient provides the product’s performance benefits.
Additionally, “[w]hen a product name makes an express claim which conveys a message that is not supported, extrinsic evidence of consumer confusion is not required to recommend a product name change,” the self-regulatory body wrote.
Unilever had also challenged Vogue’s claims that its Weightless Hydration Coconut Water shampoo contained no “Zero SLS/SLES,” or Sodium Lauryl Sulfate and Sodium Lauryl Ether Sulfate, two common sulfates found in shampoos. Despite this claim, the shampoo contained Ammonium Lauryl Sulfate, the challenger told the NAD.
Looking to the FTC’s Green Guides, the NAD found consumers could be misled by the “Zero SLS/SLES” claim to believe the product contained no sulfates at all. “In general, an advertiser should not advertise a product as ‘free-of’ an ingredient if it includes another ingredient which has the same effect,” the NAD wrote.
The “zero” claim for the Weightless Hydration Coconut Water implied that the product did not pose the risks or challenges associated with sulfates, even though it still contained a sulfate. Because Vogue failed to demonstrate that Ammonium Lauryl Sulfate was different from or lacked the undesirable attributes associated with other sulfates that consumers seek to avoid when choosing products with sulfate-free surfactants, the NAD recommended that the advertiser discontinue the “Zero SLS/SLES” claims.
To read the NAD’s press release about the case, click here.
Why it matters: Although product name changes are rarely recommended by the NAD, advertisers should take note that the NAD will not hesitate to resort to such measures when a product name makes an express claim that conveys a message that is not supported, even in the absence of consumer confusion. The case also serves as a reminder of the strict guidelines for making a “free-of” or “zero” claim.