The National Advertising Division (NAD) recently recommended that Boehringer Ingelheim discontinue “maximum strength” claims made in connection with its “DulcoGas Maximum Strength” anti-flatulence product. The challenger, Novartis Consumer Health, Inc., argued that the claim referred to the strength of one tablet of the DulcoGas product, while Boehringer argued the claim referred to a cumulative dose of four tablets over the course of a day. The NAD agreed with the challenger, finding that consumers could reasonably take away two messages – namely, that one dose provides (a) at least as much of the active ingredient as any other anti-flatulence product on the market, and/or (b) the maximum amount permitted by the relevant regulatory body. In fact, each tablet contained only 125 mg of the active ingredient, and this dosage level was less than the amount in other tablets on the market and less than the maximum daily dose of 500 mg set by the FDA. The NAD also noted the potentially wide variation in consumer use of the product and thus was not persuaded that consumers would presume the “maximum” reference specifically related to four doses taken during one day.

Nor was the NAD persuaded by Boehringer’s argument that competing products also use the “maximum strength” designation to describe tablets that contain only 125 mg of the active ingredient. On this point, the NAD concluded that, based on the full body of evidence presented, such products were outliers and that the “maximum strength” label was not the norm for 125 mg tablets. Moreover, the NAD noted that advertisers cannot defend claims that are misleading simply by pointing to competitors that make similarly misleading claims.

Tip: Advertisers are required to provide support for all reasonable interpretations of their advertising claims, and claims with respect to particular product attributes should be sufficiently precise and accurate to avoid the potential for consumer confusion.