All advertisers know that they must possess “substantiation” to support performance claims, especially ones with measurable results like “ABC PRODUCT PERFORMS 60% BETTER THAN PRODUCT X!” But a recent decision by the National Advertising Division of the Council of Better Business Bureaus (“NAD”) reminds advertisers that testing data may not be enough to support strong claims of performance.

In the case, Prestone Products Corporation: Prestone De-Icer Windshield Washer Fluid, NAD Case #5364 (08/18/2011), the NAD reiterates the importance of considering the relevance of the claim to a consumer, even when the advertiser has testing data to support the statement. The advertising campaign evaluated by the NAD, which was launched by Prestone Products Corporation, centered around the claim that Prestone De-Icer windshield washer fluid “melts 98% more ice than Rain-X.” The NAD asked that Prestone stop making the claim because – while the claim was technically true – it was unclear whether the results would be relevant to a consumer operating in “real world conditions.”

The decision is notable because the NAD stated that performance claims touting high percentages – such as the “98%” claim – have “a powerful impact on consumers” and should therefore be scrutinized more closely to ensure they do not overstate the product testing results, especially when the claim disparages a competing product. It was also notable because, in this case, Prestone had evidence to support the claim. And, according to the NAD, the evidence, which was submitted confidentially, demonstrated that the test was conducted fairly and properly. The NAD noted that all the de-icers tested by Prestone were treated equally; the test equipment was properly cleaned and maintained between test repeats; and the test methodology was not skewed to favor one product over another. Further, the NAD explained that the results were “statistically significant” and that the claim was technically true. In some cases, this would be enough to allow the advertiser to continue with the claim.

The NAD’s review went a step further, however. Because the claim was visually bold, since it prominently referenced the “98%” on the front of the Prestone packaging, the NAD also considered whether the differences between the Prestone product and the Rain-X product would be relevant to consumers operating in real-world conditions. Put more clearly, the NAD was concerned the testing method did not replicate how a consumer would actually use the de-icer, even though the testing results did support the claim.

The testing method was comprised of a windshield coated with light ice, upon which the de-icer was sprayed. Next, the test employed wipers for a specified amount of time, immediately after which measurements were taken to determine the amount of removed ice. After reviewing the testing method, the NAD expressed concerns regarding whether it replicated real-world conditions and stated that the “elapsed time of the wiper blade action was so short and the amount of ice removed by all de-icers – including the advertiser’s de-icer – was not enough to permit safe driving.” Thus, even though the Prestone de-icer appears to have melted 98% more ice than the Rain-X product – as stated by the claim – the NAD held that this was not likely enough to allow for safe driving and asked that Prestone discontinue the claim.

Prestone did not supply consumer perception evidence, but had it, the case may have turned in its favor. In the absence of consumer perception evidence, the NAD is forced to evaluate based on its own expertise to determine the message.

The decision demonstrates the scrutiny placed on strong performance claims. Further, it provides a good example of a situation where testing data, by itself, may not support a claim. Advertisers must also consider the context of the advertisement, as well as a consumer’s interpretation of the claim.

Prestone has appealed the decision to the National Advertising Review Board.