National Advertising Division (NAD) and National Advertising Review Board (NARB) 2016 Highlights

Decisions Addressing Both NAD Jurisdiction and Merits

The Colgate-Palmolive Company (Tom’s of Maine “Naturally Dry” Antiperspirant), NAD Case No. 6001 (Sept. 15, 2016)

Following a challenge by Unilever United States Inc., NAD recommended that The Colgate-Palmolive Co. discontinue certain claims for its Tom’s of Maine “Naturally Dry” Antiperspirants. NAD first determined that it retained jurisdiction over the challenge, notwithstanding Advertising Self-Regulatory Council guidelines providing that NAD should administratively close a case involving claims subject to pending litigation or a court order. NAD determined that a Tom’s of Maine class action settlement order did not preclude jurisdiction because it approved only the fairness of a settlement agreement and made no findings as to the challenged claims’ truthfulness or accuracy. On the merits, NAD largely agreed with the challenger’s argument that various “dry” or “naturally dry” claims for the antiperspirant were misleading, principally because its formulation involves significant chemical transformations yielding a commercial ingredient that does not resemble ingredients found in nature. Citing past NAD decisions involving “natural” claims, and noting the uniqueness of the Tom’s of Maine “naturally dry” claim among antiperspirants, NAD recommended that Colgate discontinue the claim, including in the product name, as well as other claims that the product is “natural” or “really works [n]aturally.” NAD noted, however, that its decision did not preclude claims such as that the product uses natural fragrances, that it does not contain preservatives and that its active ingredient providing wetness protection is derived from recycled aluminum. View the press release.

Stay tuned: The company has said it will appeal to the NARB the matter of NAD’s jurisdiction.

Bayer Crop-Science US (Bayer Advanced 3-in-1 Weed and Feed for Southern Lawns), NAD Case No. 6033 (Dec. 8, 2016)

Following a challenge by The Scotts Co. LLC, NAD recommended modifications to product packaging, and discontinuance or modification of television advertising, for “Bayer Advanced 3-in-1 Weed and Feed for Southern Lawns.” NAD first addressed NAD/NARB procedure that deprives NAD of jurisdiction in the face of applicable law or regulations mandating or prohibiting the use of certain language in advertising. NAD concluded it could review the claims in question because their “crux” — namely, that the product kills weeds, feeds lawns and prevents weeds for six months — involved an implied claim that thus did not implicate EPA labeling claim approval. On the merits, NAD addressed the challenger’s objection that the three highlighted features of the product appear in proximity to the phrase “up to 6 months,” which was made in significantly larger, red font. NAD thus recommended that packaging language referring to “up to 6 months” be significantly reduced in size, and located solely next to the “prevents weeds” claim, to avoid implying a broader claim than was substantiated. NAD similarly recommended that broadcast advertising featuring a lawn demonstration comparing the advertiser’s and a competitor’s products either be discontinued or be modified to avoid conveying the message that all weeds are killed shortly after application of the advertiser’s 3-in-1 product, and to accurately depict typical weed regrowth six months after application of the challenger’s product. NAD concluded by rejecting a denigration claim by the challenger, and largely rejected a challenge to website advertising touting the benefits of one application of the product, recommending such claims be qualified to make clear that one application provides up to six months of weed regrowth protection, not six months of lawn feeding and weed killing. View the press release.

NAD Addresses Consumer-Focused Advertising Claims

SharkNinja Operating, LLC (Shark Rotator Powered Lift-Away and Shark Rocket Powerhead Vacuum Cleaners), NAD Case No. 5948 (Apr. 25, 2016)

Following a challenge by Dyson Inc., NAD recommended that SharkNinja Operating LLC discontinue the unsupported preference claim that “Americans now choose Shark 2-to-1 over Dyson.” NAD determined that one message reasonably conveyed was that consumers prefer Shark vacuums over Dyson vacuums — a message broader than one supported by sales superiority. However, NAD observed that Shark could make a comparative claim based on unit sales (e.g., “Shark outsells Dyson 2-to-1”), provided that the claim is accurate and does not imply a head-to-head preference. In addition, NAD determined that the advertiser provided a reasonable basis for a “5-Star Rated” claim, while cautioning avoidance of claims that its products are “5-Star Rated” before obtaining the necessary support. View the press release.

Vapore, LLC (MyPurMist Handheld Steam Inhaler), NAD Case No. 5971 (July 12, 2016)

NAD recommended that Vapore LLC, maker of the “MyPurMist Handheld Steam Inhaler,” discontinue the express claim that its product has more “5-star reviews than any other steam inhaler,” as well as consumer testimonials made in broadcast and internet advertising. NAD cited reliability concerns over some dated “star” reviews and the potential double-counting of reviews on various retailers’ websites, as well as the fact that consumers may give five-star ratings for reasons other than the attributes mentioned in the advertising. NAD also recommended discontinuance of consumer testimonials, citing the absence of competent and reliable scientific evidence that the endorsers’ experience was generally representative, and that a physician testimonial be modified to avoid referring to competing steam inhalers and to refer to MyPurMist, rather than Vapore, in a disclaimer that was easier to read, notice and understand. View the press release.

Nootrobox, Inc. (Advertising for Nootropics), NAD Case No. 5995 (Aug. 30, 2016)

NAD recommended that Nootrobox Inc. discontinue challenged product-performance claims, as well as testimonials, for the company’s RISE™, SPRINT® and YAWN™ dietary supplements. Citing product testimonials in internet advertising from journalists who appeared to be in their 30s to 40s and references to enhancing “long-term cognitive performance” and conquering exams, NAD found young adults were the target audience for the supplements. NAD recommended that Nootrobox discontinue all the challenged product performance claims because they relied on tests of ingredients used in the products’ formulation, and NAD found no reliable record evidence demonstrating that the specific product formulations produced the same benefits. NAD also concluded that a number of studies did not support specific ingredient claims — because, for example, the studies were not relevant to the advertising’s target population. NAD did find, however, that the advertiser provided a reasonable basis for some specific ingredient claims and concluded that Nootrobox could use certain modified claims, such as “Nutrients for your brain,” if it reflected evidence in the record that SPRINT contains caffeine. View the press release.

NARB Recommends Discontinuance of Performance Claim as Part of Product Name

Rust-Oleum Corporation (Painter’s Touch Ultra Cover 2X Spray Paint), NAD Case No. 5934, NARB Case No. 213 (July 14, 2016)

NARB reviewed NAD’s decision addressing claims made by Rust-Oleum Corp. on product packaging and in advertising for its Painter’s Touch Ultra Cover 2X spray paint. Rust-Oleum agreed to accept all of NAD’s recommendations that it discontinue various “2X the coverage” claims, but appealed to NARB the issue of using “2X” in the product name. The NARB panel agreed with NAD that consumers would reasonably interpret “2X” as meaning “two times” and believed that the combination of “2X” and “Ultra Cover” in both the product’s original and current names reasonably conveyed a performance claim that the product delivered twice the coverage of other spray paint products. Because NAD had objected to Rust-Oleum’s testing methodology and results, and because the record did not show that the product delivers twice the coverage of other spray paints, the NARB panel recommended that Rust-Oleum discontinue use of “2X” as part of the product name. View the press release.