It is long-standing NAD precedent that a “compare to” claim can be either a mere invitation to compare to products, which requires no substantiation, or a comparative performance claim, which would require substantiation. Whether a “compare to” claim is an invitation or a comparative claim depends on the context in which a claim appears. Over the years, NAD’s analysis has focused on whether the “compare to” claim appears as a distinct claim, set off from other claims on the label or advertising, or whether the claim appears integrated within other product performance claims. In previous cases, when a “compare to” claim was determined to be sufficiently separate and distinct from other label or advertising claims, it was deemed a mere invitation to compare two products and the analysis ended there.
A recent NAD case raised an important question regarding what comes after an invitation to compare and NAD’s answer to this question could add an additional step to marketers’ analysis of “compare to” claims.
The case was brought against Lang Pharma, the makers of the CVS Brand Hair Nourishing Supplement (“HNS”), by Lifes2Good, the makers of Viviscal, also a hair health dietary supplement. The HNS product label and website included a claim “Compare to Viviscal” and from the looks of the supplement facts panel, appeared to include the same if not additional ingredients as Viviscal. However, what was not clear from a comparison of the labels, which was revealed through the course of the challenge, was that there were key differences between the products. First, the active ingredient in the Viviscal product was a unique proprietary marine collagen ingredient that was different from the marine blend in the HNS product, though the products were both declared as marine complexes on the label. Second, the makers of Viviscal had conducted numerous studies on their product showing the efficacy of their marine blend when used in concert with the rest of the ingredients in the product, whereas the makers of the HNS product had not conducted any research on the total formulation of the product, instead relying on research about the effects of the individual ingredients in the product.
Key Question Raised:
This set of facts raised a key question: even if a “compare to” claim is just an invitation to compare products, what happens when a consumer viewing the products would not have adequate information based on the information provided on the label or in the advertisement to make an informed comparison of the products. In this case, a consumer viewing the labels would not know about differences in the active ingredient, nor would they know that one product had undergone whole product testing proving efficacy, while the other product had undergone no testing.
In its decision, NAD found that the claim was an invitation to compare but echoed the concern of the challenger, stating that at the point of sale, a reasonable consumer viewing the products would take away the “message that the CVS and Viviscal brands are similar in type, composition, and efficacy, a message not supported by any evidence in the record.” NAD also noted that because the supplements worked over a period of time, “it is likely that consumers would have difficulty assessing the effectiveness of the product in a timely manner.” Finding that a consumer could not determine key differences in products in a timely manner by comparing the labels or through using the products, NAD recommend that the advertiser discontinue the use of the “compare to Viviscal” claim even though it was just an invitation to compare.
Impact of this Case:
NAD’s decision in this case has the potential to have a significant impact on how companies consider and use “compare to” claims. Simply, NAD’s willingness to continue its analysis past the traditional stopping point of determining that a “compare to” claim is a mere invitation to compare, asking what happens when consumers accept the invitation and compare the products. Will a consumer comparing the two products be able to assess meaningful differences in the product based on either labeling or use of the product in a timely manner?
Depending on how the NAD implements this new and additional step of analysis in other cases, it could mean that “compare to” claims on products that do have meaningful consumer relevant differences from the comparative product will not be permitted if a reasonable consumer would have a difficult time detecting or interpreting meaningful differences after accepting the invitation to compare. Time will tell if this additional step is applied outside of the dietary supplement context, as well.