The National Advertising Division (NAD) recently recommend that Fiore Rx, LLC modify and discontinue certain advertising claims for its antifungal nail polish. Fiore Rx asserted that the tagline “Beautiful on... Beautiful off...” was merely puffery. However, the NAD disagreed, noting that although “beautiful on” by itself could constitute puffery, when used in connection with “beautiful off” in the context of advertising for an anti-bacterial product, a reasonable consumer could believe that the nail polish conferred an anti-bacterial or anti-fungal benefit to the nail. Thus, the NAD recommended that this tagline be discontinued.
Fiore Rx also claimed that its products are “pharmaceutical grade products,” and defended this claim on the basis that the products contain an FDA approved pharmaceutical ingredient, undecylenic acid, which was manufactured consistent with FDA regulations. However, the NAD found that the claim reasonably conveyed that the product, in its entirety, was manufactured with ingredients and pursuant to procedures that were approved by the FDA, and thus recommended that Fiore Rx limit the “pharmaceutical grade” claim to the particular ingredient to which the claim applies.
Finally, the NAD voiced two concerns about Fiore RX’s claim that the product was made with “naturally derived active ingredients undecylenic acid and propolis.” First, the NAD found that the claim reasonably conveyed a message that the ingredients would deliver “some meaningful benefit to consumers” because both were defined as “active ingredients.” Second, the NAD found that the language conveyed that both the ingredients were “naturally derived,” when in fact only propolis is naturally derived. Thus, the NAD recommended that this claim also be discontinued or modified.
Tip: Advertisers are obligated to support all reasonable interpretations of their claims in the context of the advertisement as a whole. Product claims should be carefully worded so as to convey precisely what the advertiser can support.