The FTC and the NAD require adequate substantiation for claims wherever they appear. There is typically a higher bar for when a company is required to change its trade name because it includes an allegedly unsupported claim, but it does happen. In other words, there is no “But it’s the name of my product” defense to a false advertising challenge. For this reason, marketing lawyers should exercise extreme caution before signing off on a trade name without conducting a full claims analysis. While it might not make you popular at the development stage, it will save a laundry list of headaches down the road.
A recent challenge at the NAD demonstrates this. Dial, maker of Purex laundry detergent, challenged Church & Dwight claims for its Arm & Hammer laundry detergent concentration, including for the Arm & Hammer Ultra 4X brand. Church & Dwight advertised that this product was four times as concentrated as other liquid laundry detergent brands. (For other products in its line it called out that it was twice as concentrated). Dial argued that this was a misleading concentration claim that would suggest these products were a better relative value and also greener than products without such a claim. Dial said these concentration claims were based on comparing the dose or amount needed to wash a load with Arm & Hammer to a standard dose that had been discontinued years before. By way of background, about ten years ago liquid detergent manufacturers reduced the water in their products by about half to reduce the amount of plastic used for the packaging and the weight of the products for shipping. For a time after this change, all manufacturers called out two times concentration to alert consumers to use less. After a few years this message was discontinued from most brands, including the Purex line. But Church & Dwight continued a reference to this discontinued standard, asserting that some consumers might still need this reminder. NAD found, as it has before, that comparative claims must be in reference to a current standard that is consumer relevant. NAD recommended Church & Dwight discontinue concentration claims that used as a reference the old dosing standard. And in the case of the Ultra 4X brand, NAD found that there would not be an exception for the 4X reference simply because it was part of the brand name.