Advertising for The Scotts Company was recently challenged at the National Advertising Division (NAD) by United Industries Corporation. Among other things, the challenger asserted that Scotts Ortho incentivized consumers to write reviews of its products via a sweepstakes, but the reviews failed to disclose this material connection.

Scotts sent an email to consumers inviting them to write a review for a chance to win a $25 Visa gift card. Although the sweepstakes rules required consumers to include the words “Sweepstakes Entry” in their review, this requirement was not stated in the email or included in the product review template, and no reviews created pursuant to the sweepstakes contained the required disclosure. Following the challenge, Scotts took the remedial step of including the disclosure requirement in future emails promoting the Sweepstakes and indicated that it was working with its vendor to tag all reviews with the “Sweepstakes Entry” disclosure, as well as to ensure that the disclosure “traveled” to all participating retailer websites. NAD noted that in the future, when product reviews are incentivized, the advertiser should take similar steps to ensure that the reviews clearly and conspicuously disclose that a material connection exists between the reviewer and the advertiser.

Finally, and as a general matter, NAD stated that it is deeply concerned with these sorts of programs, because such programs call into question the reliability of consumer reviews, in part because it is often difficult or impossible to determine whether a consumer has actually purchased or used the reviewed product. Additionally, NAD expressed concerns about the fact that some services used by advertisers to manage consumer reviews do not automatically tag incentivized reviews. Notwithstanding these concerns, NAD determined that these policy questions are best left to be addressed in the future.

TIP: Advertisers incentivizing reviews with sweepstakes or contest entries should ensure that such reviews contain a disclosure regarding the material connection between the entrant and the advertiser and should consider taking remedial steps if entrants are failing to include such a disclosure.