The Colgate Palmolive Company (Tom’s of Maine “Naturally Dry” Antiperspirant), NAD Case Report No. 6001 (Sept. 15, 2016)
NAD reviewed express and implied claims in advertising by Colgate-Palmolive Co. for its Tom’s of Maine “Naturally Dry” antiperspirant. NAD first determined that it retained jurisdiction over the challenge, notwithstanding Advertising Self-Regulatory Council guidelines providing that NAD should administratively close a case involving claims subject to pending litigation or a court order. NAD determined that a Tom’s of Maine class action settlement order did not preclude jurisdiction because it approved only the fairness of a settlement agreement and made no findings as to the challenged claims’ truthfulness or accuracy. On the merits, NAD largely agreed with the challenger’s argument that various “dry” or “naturally dry” claims for the antiperspirant were misleading, principally because its formulation involves significant chemical transformations yielding a commercial ingredient that does not resemble ingredients found in nature. Citing past NAD decisions involving “natural” claims, and noting the uniqueness of the Tom’s of Maine “naturally dry” claim among antiperspirants, NAD recommended that Colgate discontinue the claim, including in the product name, as well as other claims that the product is “natural” or “really works [n]aturally.” NAD noted, however, that its decision did not preclude claims such as that the product uses natural fragrances, that it does not contain preservatives and that its active ingredient providing wetness protection is derived from recycled aluminum. View the press release.
Rust-Oleum Corporation (Painter’s Touch Ultra Cover 2X Spray Paint), NAD Case No. 5934, NARB Case No. 213 (July 14, 2016)
NARB reviewed NAD’s decision addressing claims made by Rust-Oleum Corp. on product packaging and in broadcast and print advertising for its Painter’s Touch Ultra Cover 2X spray paint. Rust-Oleum agreed to accept all of NAD’s recommendations that it discontinue various “2X the coverage” claims except one – that it change its product name – which it appealed to NARB. The NARB panel agreed with NAD that consumers would reasonably interpret “2X” as meaning “two times,” and believed that the combination of “2X” and “Ultra Cover” in both the product’s original and current names – Painter’s Touch Ultra Cover 2X and Painter’s Touch 2X Ultra Cover – reasonably conveyed a performance claim that the product delivered twice the coverage of other spray paint products. Because NAD had objected to the methodology and results of tests that Rust-Oleum relied on, and because the record did not show that Painter’s Touch 2X Ultra Cover spray paint delivers twice the coverage of other spray paints, the NARB panel recommended that Rust-Oleum discontinue use of “2X” as part of the product name. View the press release.
Vestagen Tech. Textiles, Inc. (Vestex Fabric), NAD Case No. 5972 (July 14, 2016)
NAD reviewed claims made by Vestagen Technical Textiles for Vestex fabric, used in hospital garments. Among other things, the challenger objected that the health claims at issue essentially relate to the role of health care apparel in the transmission and reduction of health care-associated infections (HAIs), the latter of which is among the Center for Disease Control’s top 10 priorities for 2016. NAD considered applicable FDA and EPA guidance before determining that, although Vestagen provided a reasonable basis to claim that its products protect against certain substances and materials, Vestagen should narrowly tailor its claims to state, for example, that its Vestex surgical apparel and scrub suits protect against “microorganisms, body fluids and particulate material on the fabric,” and not use terms such as “pathogens” and “dangerous contaminants.” NAD also recommended that Vestagen make clear that the protection Vestex provides is due to its fluid barrier properties, and avoid implying that it protects the surgical patient’s and operating room personnel’s health via antimicrobial properties, has an effect on health care professionals’ illness rates, or provides any other unsupported benefits. NAD further recommended that Vestagen discontinue its “clinically proven,” “evidence based” and similar claims as they relate to Vestex and its impact on certain HAIs, in part because the conclusions of the study on which these claims were based were too tentative to support the claims. Finally, NAD recommended that Vestagen discontinue using an excerpt from the study in its advertising and sales materials, and that any use in Vestagen media of certain articles authored by current or former employees clearly and conspicuously disclose the material connection to Vestagen and/or be labeled as advertising. View the press release.
Vapore, LLC (MyPurMist Handheld Steam Inhaler), NAD Case No. 5971 (July 12, 2016)
NAD reviewed an express comparative claim that Vapore’s MyPurMist handheld steam inhaler has “more 5-star reviews than any other steam inhaler,” as well as testimonials disseminated in broadcast and internet advertising. NAD recommended that Vapore discontinue the claim, citing reliability concerns over some dated “star” reviews and the potential double-counting of reviews on various retailers’ websites, as well as the fact that consumers may give five-star ratings for reasons other than the attributes mentioned in the advertising. NAD also recommended discontinuance of consumer testimonials, citing the absence of competent and reliable scientific evidence that the endorsers’ experience was generally representative, and that a physician testimonial be modified to avoid referring to competing steam inhalers and to refer to MyPurMist, rather than Vapore, in a disclaimer that was easier to read, notice and understand. View the press release.
Comcast Commc’ns, Inc. (Xfinity Internet, Television & Telephone Services), NAD Case Report No. 5974 (July 19, 2016)
NAD determined that an unqualified claim by Comcast Communications Inc. that its “XFINITY delivers the fastest Internet in America” based on “2015 Speedtest.net testing” communicated a claim of overall superior speed across all tiers of service and by all consumer users that was unsupported by crowdsourced data from Ookla’s Speedtest application. NAD noted, however, that its conclusion did not preclude Comcast from accurately communicating what the results of a “fastest Internet in America” award from Ookla and the underlying testing actually show – namely, that more XFINITY customers received its fastest internet download speeds than did customers of other ISPs. NAD also concluded that claims that XFINITY delivered faster in-home Wi-Fi speed than competitor service FiOS should be discontinued because the claims were supported by 2014 testing of prototype firmware. NAD determined that, while Comcast provided a reasonable basis for a comparative claim supported by router speed testing based on 2016 data, Comcast should expressly modify future claims to clarify that only users of 5GHz band (or dual-band) devices would experience the claimed superior performance. Finally, NAD addressed Comcast’s direct mail advertising claiming that the challenger, Verizon, was “eliminating its traditional home phone service in certain markets” and “discontinuing its copper wire-based home phone service.” NAD concluded that consumers could take away the inaccurate message that Verizon was eliminating home phone service entirely and recommended that Comcast either discontinue the advertising or modify it to communicate that Verizon’s changes affected its way of delivering this service, not that it was eliminating the service. View the press release.
Nootrobox, Inc. (Advertising for Nootropics), NAD Case Report No. 5995 (Aug. 30, 2016)
NAD inquired about certain express performance and implied claims by Nootrobox Inc. for its RISE™, SPRINT® and YAWN™ dietary supplements as part of NAD’s initiative, in conjunction with the Council for Responsible Nutrition, to expand NAD’s review of advertising claims for dietary supplements. Citing product testimonials in internet advertising from journalists who appeared to be in their 30s to 40s and references to enhancing “long-term cognitive performance” and conquering exams, NAD found young adults were the target audience for the supplements. NAD recommended that Nootrobox discontinue all of the challenged product performance claims because they relied on tests of ingredients used in the products’ formulation, and NAD found no reliable record evidence demonstrating that the specific product formulations produced the same benefits. NAD also concluded that a number of studies did not support specific ingredient claims – because, for example, the studies were not relevant to the advertising’s target population. NAD did find, however, that the advertiser provided a reasonable basis for some specific ingredient claims – for example, concerning the ability of caffeine in its SPRINT product to increase focus and mental clarity – and concluded that Nootrobox could use certain modified claims, such as “Nutrients for your brain,” if it reflected evidence in the record that SPRINT contains caffeine. NAD recommended that claims not supported by evidence or corresponding qualification be discontinued, along with the use of the testimonials. View the press release.
Zeltiq Aesthetics, Inc. (CoolSculpting® Cryolipolysis® Body Contouring System), NAD Case Report No. 6005 (Sept. 23, 2016)
NAD reviewed express and implied claims by Zeltiq Aesthetics Inc. in print advertising for its CoolSculpting Cryolipolysis body contouring system. NAD concluded that Zeltiq provided a reasonable basis – through “methodologically robust,” long-term, sufficiently powered studies that Zeltiq had submitted in support of 510(k) applications to the FDA – to claim “See a slimmer you” and “CoolSculpting is an FDA-cleared procedure that uses controlled cooling to eliminate fat without surgery.” However, NAD cautioned Zeltiq to avoid fat elimination claims in order to ensure that individuals depicted in its advertising reflect candidates who would be appropriate for the CoolSculpting procedure; to include a series of disclaimers clarifying for which patients the procedure is and is not intended and how long visible results can take; and to provide context for “after” photos depicted in the advertising. NAD also recommended that Zeltiq modify a “no downtime” reference to indicate that individuals will experience little to no downtime, modify a “95% customer satisfaction” claim to reference the 85 percent mean demonstrated by its evidence, and to ensure that the before-and-after photographs reflect the typical reduction achieved by the study subjects in Zeltiq’s FDA studies. Lastly, NAD recommended that Zeltiq discontinue an “Eliminate Fat With The World’s #1 Non-Invasive Fat Removal Treatment” claim, because NAD deemed the submitted evidentiary support insufficient. NAD noted, however, that its decision did not preclude Zeltiq from claiming that CoolSculpting is the treatment doctors use most for noninvasive fat removal. View the press release.