The National Advertising Division stayed up past its bedtime to evaluate three disputes between warring mattress companies.
The first decision pitted Tempur-Pedic Management, Inc. against Simmons. Tempur-Pedic challenged comparative performance and superiority claims touting the cooling, support, and pressure relief for Simmons’ ComforPedic Mattresses from Beautyrest. They included “Unlike traditional memory foam, our Aircool Memory Foam, a better memory foam, is uniquely formulated to dissipate heat for the ultimate in comfort” and “[As opposed to traditional memory foam], Beautyrest has created a better memory foam…more supportive, and more comfortable.”
Tempur-Pedic argued the claims were unsubstantiated and misleading.
The NAD noted that no industry standardized or universally accepted set of tests exists for the cooling capabilities of memory foam mattresses. But analyzing results from Simmons’ ASTM testing, the self-regulatory body found the evidence sufficient to support both monadic and comparative airflow and breathability claims.
Turning to the support and pressure relief claims, the NAD found Simmons’ monadic claims acceptable. However, the evidence was insufficient to support claims that Simmons’ mattresses are “more supportive” than ordinary/traditional memory foam. In addition, the use of the comparative phrase “superior pressure relief” was unsupported, and the NAD recommended that it be discontinued or modified to a monadic context.
Tempur-Pedic also took issue with claims by Simmons that its mattresses “deliver the comfort and support your body needs to wake up living life fully charged” and “It’s more than a better night’s sleep; it’s You Fully Charged.”
But the claims at issue “are likely to be understood by consumers as merely exhibiting the advertiser’s pride in the quality of its product,” the NAD said. Accordingly, the comfort claims did not require substantiation because they were mere puffery.
In a second decision, Tempur-Pedic was on the receiving end of a challenge brought by Serta, which disputed Tempur-Pedic’s claims that its beds “sleep cooler” than other mattresses, particularly Serta’s iComfort gel-infused memory foam.
Even though Tempur-Pedic undertook a rigorous study by an independent lab in Germany, the NAD found the testing was problematic and insufficient to establish a reasonable basis for the company’s claims. The temperature differences between the two parties’ mattresses was quite small – less than one half of one degree and not necessarily perceptible by consumers.
In addition, the NAD was “troubled” by Tempur-Pedic’s bar graph that focused on just a span of three degrees, which exaggerated the slight difference in temperature between the two mattresses. “Displaying comparative data in such a manner reasonably conveys the message to consumers that the differences between two products are greater than in reality,” the NAD cautioned. It recommended that Tempur-Pedic discontinue its “cooler” claims.
Tempur-Pedic should also modify or discontinue the phrase “unique ability to react continuously to your body’s unique shape, weight and temperature,” which communicated to consumers that the company’s memory foam is the only one that has the ability to react to a sleeping individual and not simply a unique mechanism of action, the NAD said.
Finally, the NAD concluded that Tempur-Pedic should modify its claims that “other companies buy generic memory foam off the shelf,” which conveyed an unsupported message that Tempur-Pedic’s competitors use inferior “generic” foam product in their mattresses.
The self-regulatory body addressed yet another mattress dispute, recalling an earlier challenge brought by Tempur-Pedic to Serta’s advertising claims for its iComfort Sleep System memory foam mattresses. In December 2012, the NAD recommended that Serta discontinue inadequately supported comparative superior “cooling” claims. It concluded, however, that Serta could make more limited monadic claims with regard to the design of air flow in its products.
Tempur-Pedic filed a compliance challenge with the NAD regarding advertising on Serta’s homepage that read “Smarter. Cooler. Better.” It also supplied photographs of various Serta retailers’ in-store promotional material and screenshots of their Web sites which contained comparative cooling claims the NAD had recommended be discontinued.
Serta informed the NAD that the homepage phrase was a trademarked claim in use for two years and had not been challenged by Tempur-Pedic in the underlying challenge. The NAD agreed that the phrase was not addressed but advised Serta to review the use of the phrase “to ensure that it does not reference (nor is placed near) any comparative to traditional/ordinary memory foam.”
NAD also said it appreciated Serta’s attempts to modify advertising by third party retailers. Serta said it updated the official copy library for its third party retailers it communicated to sales managers and representatives, and it directed dealers to update Web copy. The Web sites identified by Tempur-Pedic were “a small percentage” of the more than 2,000 retailers carrying the iComfort Sleep System, Serta argued.
“In light of the efforts made by Serta since the issuance of NAD’s decision to comply with NAD’s recommendations, and its continued efforts in this regard, NAD was satisfied that the advertiser had made a good faith effort to comply with the recommendations in NAD’s decision,” it said. “NAD concluded that no further action was required at this time and closed the compliance proceeding.”
To read the NAD’s press release about the Tempur-Pedic/Simmons dispute, click here.
To read the NAD’s press release about the Serta/Tempur-Pedic dispute, click here.
Why it matters: In the Tempur-Pedic/Simmons and Serta/Tempur-Pedic decisions, the NAD recognized “how important it is for advertisers to be able to distinguish their products from their competitors by touting any distinctive technological advances and/or product innovations, which provide benefits to consumers.” This need has been “readily apparent in the memory foam mattress industry, which has been the subject of a number of recent NAD challenges. As the industry has expanded and innovated, numerous memory foam manufacturers have been promoting their products with new advertising claims. Such claims, however, must be truthful, accurate and not misleading,” the self-regulatory group cautioned.