The National Advertising Division of the Council of Better Business Bureaus (NAD) recently reviewed certain comparison claims made by both ConAgra Foods, Inc. (ConAgra), and Colgate-Palmolive Company (Colgate).

In both cases, the companies were advised to cease using the claims in advertising and marketing as there was insufficient evidence to support the claims.

Nestle USA, Inc., the maker of Stouffer’s frozen lasagna products, challenged the comparison claims made by ConAgra regarding Marie Callender’s “Three Meat and Four Cheese Lasagna.” At issue were ConAgra’s claims that “Marie Callender’s multi-serve lasagna…is preferred nearly two to one over Stouffer’s” and is “PREFERRED over the leading Meat Lasagna.” ConAgra based these comparison claims on a taste test between Marie Callender’s 31-ounce frozen Three Meat and Four Cheese Lasagna and Stouffer’s 19-ounce Meat and Sauce lasagna – two very different products. While NAD recognized that advertisers are permitted to make “apples to oranges” comparisons to “highlight features or attributes of their products,” it was quick to point out that in order to do so advertisers must “clearly indicate the exact product to which its advertised comparison refers.” NAD further noted that advertisers must also be sure that their advertisements do not “communicate the message that a competitor does not make a more similar product than the one being compared to the advertiser’s own product.” In this case, NAD concluded that in “terms of size and method of preparation . . . the Stouffer’s 38-ounce lasagna or Marie Callender’s 19-ounce Three Meat and Cheese product were more similar” to each other than the products compared in the advertising.

Although ConAgra disclosed that the Stouffer’s product used in the comparison was 19-ounce lasagna with meat and sauce, NAD concluded that the disclosure, which was made in small type, was “insufficient to qualify what could be interpreted by consumers as a line claim” (i.e., the statements about the product are true for all items within that product’s line). For these reasons, NAD concluded that ConAgra’s taste test did not support its claims that Marie Callender’s lasagna was “preferred” over other leading products and “nearly two to one over Stouffer’s” and recommended that ConAgra and Marie Callender’s cease making such claims.

In addition to evaluating Nestle’s challenge against ConAgra, NAD was also recently charged with determining the appropriateness of comparison claims made by Colgate-Palmolive about its Sensitive Pro-Relief Toothpaste. In that case, GlaxoSmithKline (GSK) challenged Colgate’s broadcast and print advertisements which stated that its toothpaste worked faster than GSK’s product, Sensodyne.

Specifically at issue were Colgate’s claim that its toothpaste (1) “Gets to the nerve faster for long-lasting relief”; (2) is “a clinically proven formula that works fast, within 2 weeks, to provide relief to the nerve and builds a protective shield to help prevent painful sensitivity flare-ups when used as directed”; (3) “Provides faster acting and long-lasting relief with regular use”; (4) goes “Faster to the nerve for Lasting Relief”; (5) provides “FASTER & LONG-LASTING Hypersensitivity relief”; (6) works “Faster vs. Sensodyne toothpaste. Within 2 weeks. Based on clinical studies. Lasting relief with continued use”; (7) is “Part of a new treatment solution for dentin hypersensitivity”; and (8) “Rushes to the nerve for faster relief” thereby delivering “potassium nitrate to the nerve more quickly for faster relief.”

While NAD recognized that Colgate’s evidence supported its “stand-alone claims that the [toothpaste] is effective,” it concluded that Colgate had insufficient evidence to support its claims that the toothpaste worked “faster” than Sensodyne in relieving pain. As such, NAD recommended that Colgate modify or stop using any of its “faster” claims and discontinue the phrase “clinically proven better” than other leading toothpaste products.

In addition, NAD recommended that Colgate modify or stop using certain qualified claims about its products in advertisements it sends to oral care professionals. It suggested that Colgate discontinue its claims that the product provides over 30% more relief at 2 weeks and 29% more relief at 8 weeks, or, in the alternative, “modify these claims by clearly disclosing that the results were only seen in one of two test methods.” Similarly, NAD recommended that Colgate modify or stop using various comparison graphs the company uses in advertisements.

Both Colgate and GSK have appealed certain portions of NAD’s decision.

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

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

Why it matters: NAD’s decisions emphasize the need for advertisers to have sufficient evidentiary support when making product comparison claims in their advertisements. NAD stressed the need for advertisers to clearly identify the precise product that their comparison refers to as well as be sure that the advertisements do not mislead consumers by suggesting a competitor does not have a more similar product to the one being compared in the advertisement. In addition, advertisers cannot exaggerate the effectiveness of their products – like advertising that a product provides “fast” pain relief – without proper evidence to back up the claim. Likewise, proper support is required to make “clinically proven” claims. Advertisers who ensure they have sufficient evidence to support their product comparison claims greatly reduce the risk of successful challenges by competitors.