A panel of the National Advertising Review Board (NARB), the appellate advertising law body of BBB National Programs, recommended that Genexa Inc. discontinue certain pediatrician preference claims and ingredient claims for its acetaminophen-based children’s analgesic sold over the counter as “Kids’ Pain & Fever.”
The advertising at issue had been challenged before the National Advertising Division (NAD) by Johnson & Johnson Consumer, Inc., McNeil Healthcare Division. Following NAD’s decision (Case No. 7108), Genexa appealed NAD’s findings and recommendations.
While the active ingredient in both parties’ medications (acetaminophen) is the same, Genexa has disseminated superiority claims for Kids’ Pain & Fever compared to competing brands based on asserted advantages attributable to its product’s inactive ingredients.
Pediatrician Preference Claims
Johnson & Johnson challenged the following pediatrician preference claims:
- “Pediatricians prefer Genexa’s Kids’ Pain & Fever over Children’s Tylenol Pain + Fever liquid products for their own children based upon comparing the ingredients”; and
- “The doctors have spoken.”
In agreement with NAD, the NARB panel concluded that one message conveyed by the “pediatricians prefer” claim is that pediatricians prefer the Genexa product for use by their own children. Further, the NARB panel concluded that the “doctors have spoken” claim communicates to reasonable consumers that pediatricians prefer Genexa’s medication to competitive products on the market, including recommending the Genexa medicine in their practice.
Finding no support for either of these messages, the NARB panel recommended that the claims be discontinued or modified to make clear that the surveyed pediatricians expressed a preference only as to “ingredients,” and avoid stating or implying that pediatricians prefer or use the advertiser’s product over the challenger’s product in their practices or for their own children.
In the underlying decision, NAD found that the challenged claims convey the message that there are inactive ingredients in competitors’ products, including Johnson & Johnson’s, that are dangerous and unsafe. NAD recommended that these claims be discontinued for lack of support.
The NARB panel affirmed NAD’s conclusions and recommendations concerning the challenged ingredient claims. Among the claims the panel recommended be discontinued was the claim “PARABENS is stuff you’ll find in ALL PURPOSE CLEANER. And, for some reason, in kids’ fever medicine.”
The NARB panel also recommended that the advertiser discontinue the “MADE WITH REAL INGREDIENTS” claim in the context presented in the now-discontinued challenged video advertisement and avoid conveying the message that competing products with different inactive ingredients are generally unsafe, harmful, or dangerous. The panel noted that nothing in its decision prevents the advertiser from highlighting the “real ingredients” in its product, provided, that the advertising does not otherwise convey the message that competing products contain inactive ingredients that are generally unsafe, harmful, or dangerous.
Genexa stated that it “is deeply troubled by the implications of NARB's decision on both Genexa and the industry more broadly, but Genexa will comply with NARB's recommendations.”