In This Issue:

From Nauseated Emojis to Racing Deodorants, NAD SWIFT Takes on Fanciful Images and Humor

In two new matters decided by the National Advertising Division (NAD), a BBB national Program, through its SWIFT fast-track process, NAD weighed in on the significance of emojis and considered deodorants competing in Olympic-style events.

In the first matter, the issue was whether emojis may communicate messages in the same way as words or text. Stokeley-Van Camp, the manufacturer of Gatorade, challenged advertising by BA Sports Nutrition, the manufacturer of competing sports drink Body Armor, which used emojis in a social media video to signify the reaction of Cleveland Browns quarterback Baker Mayfield to drinking Gatorade.

The challenge concerned a social media video in which Mayfield is surreptitiously served Gatorade while the "Nauseated Face Emoji," and "Face with Tears of Joy" emoji are displayed. Upon taking a drink he remarks, "Yo, that is not cool. That's awful."

BA Sports Nutrition argued the case involved implied, not express claims, and so was not appropriate for SWIFT. NAD disagreed, finding the matter eligible for SWIFT because it concerned the single issue of whether the ad made disparaging, unsupported messages about Gatorade and further NAD wouldn't have to review complex evidence to deliberate on whether what it considered to be express statements were claims or puffery.

Substantively, NAD found that the ad made unsubstantiated, disparaging claims about Gatorade. Though NAD agreed that there was some measure of hyperbole at play, Mayfield's exclamation that Gatorade "is not cool" and "that's awful" conveyed an "express message that Gatorade is undesirable," which the emojis reinforced. NAD rejected the advertiser's argument that emojis were subjective, noting that they "frequently substitute for the written word in contemporary communication."

NAD also disagreed with the advertiser's contention that the video should be construed as puffery. Though humorous, the video reasonably conveyed an express disparaging message about a competing product. Since that disparagement was not substantiated, NAD recommended the claims be discontinued.

The second matter was administratively closed before NAD gave its opinion because the advertiser, Art of Sport, agreed to discontinue the ads. The challenged ads featured Art of Sport deodorant competing and winning in Olympic-style races against a mystery deodorant that challenger Old Spice argued was a clear stand in for its deodorant. Old Spice argued that, although Art of Sport did not call the deodorant out by name, it did "undoubtedly" refer to the Old Spice brand and conveyed false and unsubstantiated superiority claims.

Before discontinuing the ad, Art of Sport countered that the videos were humorous depictions of deodorants competing and that given the "fanciful" depiction of the products performing in Olympic games, it could hardly convey a message about deodorant performance.

Key Takeaways

These decisions reinforce what NAD decisions have long stated—exaggerated images and humor can still convey a falsely disparaging message. And it is clear that such cases will be reviewed in SWIFT, regardless of whether the advertiser considers the "claims" to be implied rather than express.

And, speaking of NAD SWIFT, on the heels of the Federal Trade Commission's (FTC) recent communication of its intent to take action against false endorsements and dark patterns, NAD announced a new SWIFT submission process specifically "to address the prominence and sufficiency of disclosures in national advertising." The fully online process will streamline cases to encourage advertisers to tackle these issues. Making SWIFT even easier, there will no requirement to submit an explanatory letter with the challenge (there is a simple form) and there will be a reduced filing fee.

NAD Zips Up Ziploc Claims, but S.C. Johnson Vows to Appeal

In a case decided through its standard track, NAD recommended that S.C. Johnson modify claims about its Ziploc bags which NAD found were not supported by the evidence submitted, in a challenge brought by Reynolds Consumer Products, the maker of competing Hefty bags

The challenged advertising shows two men pulling the ends of different brands of plastic bags—one a Ziploc and one a Hefty. The Hefty bag stretches until it breaks, while the Ziploc bag remains intact. This is followed by the claim: Ziploc has the "strongest film against punctures and tears" and it "preserves and extends the life of food." As the commercial ends, graphics with the words "POWER SHIELD Technology" and "UNBEATABLE PROTECTION" flash on the screen.

Other similar claims appeared on advertisements online and on the Ziploc bag package, all calling Ziploc "unbeatable protection" and "stronger than Hefty on punctures and tears," all implying that "Ziploc's storage bags are stronger than all other competitor's comparable storage bags" and that "Ziploc's entire line of storage bags are stronger than Hefty's comparable line of storage bags."

In support, Ziploc provided ASTM testing on the puncture and tear resistance for plastic bags when exposed to a falling object. Although NAD rejected Reynolds' argument that the ASTM standard tests were inappropriate, it ultimately found that the tests were not a good fit for the claims made.

The NAD said, "it would be unreasonable … to have a different ASTM test for every single consumer use to support a performance claim, [but] the test must be tethered to the performance benefit being advertised." Advertisers that, like Ziploc here, "rely on tests that reflect use of the product in a way that is not an everyday use [in this case the exposure to falling objects] … must disclose the conditions under which the claim would apply so that consumers can make an informed decision as to whether the claim is material to them."

NAD noted that while it had previously accepted testing that deviated from real-world circumstances to support a claim by Reynolds that its bags had a "stronger seal than Ziploc," Reynolds in that case had disclosed to consumers the "demanding circumstances under which the claims were relevant."

In contrast, Ziploc here failed to connect the results of the test to the demanding conditions it claimed consumers expose their bags to, such as crushing ice and storing sharp objects. It didn't explain why these examples of plastic bag use would expose the bags to the same type of condition as that tested by ASTM—i.e., dropping a heavy object onto the bags. Further, NAD said it wasn't clear that the statistical difference between the bags translated into any real word difference in context other than being hit with a falling object.

S.C. Johnson said it would appeal NAD's recommendations, including that S.C. Johnson modify its durability, freshness, and "unbeatable technology" claims.

Key Takeaways

Disclose. Disclose. Disclose. Advertisers relying on tests that use a product in unusual ways may potentially do so, but they must disclose the conditions under which the test was conducted to consumers so they can make the choice whether that information is material to their choice of which product to purchase.

Joint FTC-DOJ Complaint Against Fake COVID-Fighting Nasal Spray Nothing to Sneeze At

The Department of Justice (DOJ) and FTC have joined forces to pursue a company, Xlear, Inc., and its owner alleged to have falsely marketed a nasal spray for the treatment of COVID-19. In October 2021, the DOJ filed the complaint in Utah federal court on behalf of the FTC after a July 2020 warning letter failed to stop Xlear's false advertising.

Xlear sells nasal sprays, sweeteners, and dental products. The nasal spray at play in this matter is made mainly with xylitol and grapefruit seed extract. But, as laid out in the complaint, starting in March 2020 Xlear and its owner Nathan Jones attempted to capitalize on the pandemic by advertising that Xlear Sinus Care nasal spray was capable of preventing and treating COVID-19.

Representative ads featured copy such as "Social distancing and wearing masks offers some help, but Xlear Nasal Spray provides additional tested protection for up to four hours" and "people should be using Xlear … to prevent getting COVID-19." The company also promoted the supposed science behind the product's efficacy. For example, ads touted how "new studies conclude Xlear kills SARS-CoV-2."

The company went so far as to create an "Education" page on its site that promoted the "Science Behind Xlear." However, as noted in the complaint, no competent and reliable scientific evidence exists to support these claims about Xlear's ability to treat COVID-19.

The complaint charges Xlear and Jones with violation of the COVID-19 Consumer Protection Act and the FTC Act for misrepresentations about the COVID-fighting powers of the nasal spray. The COVID-19 Consumer Protection Act prohibits deceptive acts or practices associated with the cure, prevention, mitigation, or diagnosis of COVID-19.

According to the complaint, in response to the FTC's warning letter, the company subsequently assured the FTC on multiple occasions that it would remove or revise the alleged unlawful claims only to reinstate the claims shortly thereafter or add new deceptive statements.

The FTC is asking the court to impose monetary damages on Xlear and Jones, and to bar them from continuing to make the false claims.

Key Takeaways

Early on in the pandemic, the FTC ramped up enforcement efforts against false COVID-19 treatment claims. This case is a reminder that the FTC continues to consider this issue a priority, together with the DOJ and the COVID-19 Fraud Enforcement Task Force which was established in May 2021 to marshal the resources of the DOJ and federal agencies to combat pandemic-related fraud.

Ingredients List for the Win As Pepperidge Farm Prevails in False Ad Suit

A lawsuit alleging that Pepperidge Farm "Golden Butter" crackers were deceptively advertised because they contain synthetic oils in addition to butter was dismissed without leave to amend. The judge cited the fact that butter is listed as the second ingredient after flour on the ingredients list as the main reason that plaintiff had not plausibly alleged the claims.

According to the complaint, Pepperidge Farm falsely advertised its "Golden Butter" crackers because it promoted a butter product that also contained vegetable oils. The reasonable consumer, argued plaintiff, would be deceived by this representation because they would expect that a cracker advertised as "Golden Butter" would be "all or predominantly made with butter." Her lawsuit alleged violations of New York consumer protection statutes, breach of warranty, and fraud.

Pepperidge Farm argued that the name "Golden Butter" accurately describes the crackers' predominant use of the fat. Judge P. Kevin Castel agreed, dismissing the putative class action lawsuit without leave to amend after finding the complaint did not plausibly allege that the packaging was misleading or deceptive given the presence of butter as the second listed ingredient, after flour and ahead of any vegetable oils.

"When the ingredients list confirms that the predominantly mentioned ingredient does in fact predominate, courts have concluded that the complaint does not plausibly allege a deceptive statement," wrote Judge Castel. Faced with these representations, the reasonable consumer would conclude that the "Golden Butter" cracker was flavored with butter and would not have to look at any fine print to understand the contents of the product, said the court.

Key Takeaways

In reaching his decision, Judge Castel distinguished two prior cases where the court had found products deceptive when they were labeled as made with one ingredient but contained a different principal ingredient, noting that in those cases the suspect ingredient did not predominate in the ingredients list. We are sure to see more of these cases as the Circuits are not necessarily aligned.