Why it matters: The product name for Rust-Oleum's "Painter's Touch Ultra Cover 2X Spray Paint" is an express performance claim and should be changed because it falsely implies it provides twice as much coverage as competing spray paint products, the National Advertising Division recently determined.
The decision reminds advertisers that product names can be advertising claims. Here, NAD recommended that the advertiser discontinue the brand name Ultra Cover 2X without requiring extrinsic evidence of consumer confusion because it determined that the product name was an express performance claim that the product would deliver two times the coverage of competing cans of paint.
Detailed discussion: Competitor Sherwin-Williams Company challenged Rust-Oleum's express claims, including "Twice the coverage" and "Ultra Cover 2X," as well as arguing that the advertiser made implied claims that all of the Ultra Cover 2X paints and clearcoats of all finishes are proven to cover twice as much area in ordinary consumer use than all competing products and that competing spray paints, such as Sherwin-Williams' Krylon brand, provide insufficient coverage.
Rust-Oleum defended its advertising, providing comparative testing from 2008, 2009, 2014, and 2015 to support its claims and telling the self-regulatory body that the product name was not a performance claim but simply a category of general purpose aerosol paint products.
Calling the challenged claim "impactful," the NAD said it could "influence consumers' purchasing decisions." Product packaging featured a "very prominent 2X" adjacent to a gold seal stating "made with double cover technology," with a depiction of "one = two cans" next to the word "coverage," all of which led the NAD to conclude that the product name is an express performance claim "because 2X is followed directly by the claim 'Cover.' "
With that in mind, the NAD considered Rust-Oleum's product testing to support the claim. The 2008 and 2009 testing occurred on paints that are no longer on the market. As it is "well-established that comparative performance claims must be based on testing on products that are currently in marketplace," the self-regulatory body said the advertiser could not rely on those tests.
Although the 2014 and 2015 comparative testing of multiple samples and finishes constituted a sufficiently large sampling, the NAD expressed a number of other concerns about the test methodology and results. The testing was conducted in house and the advertiser had insufficient controls in place to prevent bias—for example, the test samples were not blinded, "which creates the potential for bias in favor of the Rust-Oleum products," according to the decision.
In addition, it was unclear whether the use instructions for Krylon's products were followed or if the distance at which the spray paints were sprayed correlated with the coverage (if sprayed at a closer distance, the chart may have been completely covered more quickly, the NAD noted). Most problematic, testing results varied greatly, from 0.41X to over 6X. Such wide variations could not be averaged to form the basis of the 2X coverage claim, the self-regulatory body wrote.
"[T]he impactful 2X claim (along with the one = two cans of spray paint imagery adjacent to the claim) appears on each and every color and finish of Painter's Touch Ultra Cover 2X," the NAD said. "Thus, consumers will reasonably expect that the 2X coverage claim is true for every color—not that it is true 'on average' and, hence, that there is the possibility that the Ultra Cover 2X product a consumer chooses to buy may not provide 2X coverage."
Product testing results must not only be statistically significant, but also consumer meaningful, the self-regulatory body added. "The advertiser presented no statistical analysis of its test results to explain the variation between test results," the NAD wrote. "The advertiser chose the basis of the comparison—a prominent quantified performance claim—yet the variations in the test results within each test mean that the averaged results (2X) might be inaccurate (and sometimes vastly inaccurate) for nearly 50 percent of the products in the category."
Therefore, the NAD recommended that the advertiser discontinue the challenged 2X coverage claims—including the product name—along with accompanying visuals.
In its advertiser's statement, Rust-Oleum indicated it will appeal the part of the NAD's decision with regard to the product name. "Rust-Oleum does not believe that the statement 'Ultra Cover 2X' is a claim that requires, as support, testing evidence that each color provides at least twice the coverage of each color … of competing general purpose paints," the company said. "Rust-Oleum believes that this finding is inconsistent with NAD precedent, reasonable marketing practice and consumer understanding."
To read the NAD's press release about the case, click here.