A “#1 brand prescribed” claim implies that professionals have a choice in prescribing brands, the National Advertising Division explained in a new decision, recommending that an advertiser discontinue such a claim as it was the only brand available for prescription.  

Splintek touted its SleepRight dental guards as the “#1 Brand Prescribed by Dental Professionals.” Competitor Prestige Brands, the maker of The Doctor’s NightGuard line of dental guards, challenged the claim. Prestige argued that the advertiser lacked substantiation for its claim.

In addition to being the only brand of dental guard available by prescription, the challenger said that a survey relied upon by Splintek to support the claim lacked an adequate sample size, was outdated and not blinded, and failed to confirm that the respondents were qualified to prescribe dental guards.

The NAD agreed, stating:

“NAD considered but was not persuaded by the advertiser’s argument that because it is the only brand of dental guard available by prescription, that its claim that it is the ‘#1 Brand Prescribed by Dental Professionals’ is supported,” according to the decision. “A claim that a product is the #1 brand prescribed by a professional reasonably conveys the implied message that professionals have a choice in prescribing brands, and choose the one brand instead of another.”

The advertiser’s dental professional survey also failed to sway the NAD. Of the 1,000 dental professionals contacted, just 111 individuals responded. Most respondents reported that they did not prescribe over-the-counter dental guards at all, the NAD said. Of those that did, just 14 said they prescribed SleepRight dental guards.

“Notably, the survey did not screen individuals responding to the survey to ensure they were dental professionals, and some were not ‘dental professionals’ but were employees working for dental professionals,” the NAD wrote. The decision also frowned upon the fact that Splintek conducted the survey itself and did not inform the respondents, and that it was conducted in 2009, rendering it outdated.

“For all of the foregoing reasons, NAD determined that the advertiser’s survey was insufficiently reliable and recommended that the advertiser’s ‘#1 Brand Prescribed by Dental Professionals’ claim is unsupported and should be discontinued,” the NAD concluded.

Prestige also challenged Splintek claims that the material of certain dental guards is “4x stronger than any other guard” and “2x stronger than any other guard.” Splintek agreed to modify its claims to “Bitepad material [is] 4x stronger than leading competitor” and “Bitepad material [is] 2x stronger than leading competitor,” but the NAD still recommended that the modified claims be discontinued.

For quantified, objectively provable, comparative claims, the best supporting evidence would be head-to-head testing, or controlled, repeatable testing under consumer-relevant conditions, using accepted methodology and protocols, the NAD explained.

Instead, Splintek only offered an affidavit from its internal chemist reviewing the reported tensile strength of the challenger’s bitepad material and comparing it to the strength of the bitepad material used in Splintek’s products.

This evidence “was insufficient to support its claims as it failed to compare the strength of the bitepad materials as used in the competing products, nor did the advertiser demonstrate that the tensile strength of the bitepad material correlates in a linear fashion with the pressure applied by consumers using the products, or address the impact manufacturing or consumer use has on the bitepad material strength,” the NAD wrote.

To read the NAD’s press release about the decision, click here.

Why it matters: Claims concerning the preferences of medical professionals—such as “#1 brand” claims—“carry a great deal of weight with consumers,” the NAD noted, “and thus must be supported by highly reliable evidence, namely well-conducted surveys of … professionals.” When considering a survey, the self-regulatory body said it considers factors such as the purpose of the study or survey, the soundness of the methodology and survey design, the reliability and appropriateness of the survey questionnaire, and the significance (including the statistical significance) of the results.