In resolving an advertising dispute in the fast-growing body wash market, the National Advertising Division recently recommended that Unilever discontinue false and disparaging advertising claims for Dove Deep Moisture Body Wash.

The Dial Corporation, maker of competing body washes, challenged Dove's ad campaign for the body wash, which included iterations of the claim "some body washes can be harsh" and images of containers of body wash wrapped in barbed wire.

Dial also challenged a video that depicted an actress performing a product demonstration that purported to compare how Dove and competing body washes affect the skin. Using skin-colored test paper, the actress put the paper in jars with water and the body washes. Minutes later, she removed them to show the paper from the Dial jar with strips removed from the surface, while the Dove paper is minimally affected. "Wow, look at the Dial body wash paper. If it can strip this paper, imagine what it can do to your skin," the actress says. "The Dove one looks a lot better, and it hasn't been stripped away. Clearly, not all body washes are the same."

In response, Dove argued that some body washes do strip proteins and lipids from the skin, and, therefore, the use of the term "harsh" was truthful and not misleading. Dove also argued that the barbed wire imagery was clearly puffery as no reasonable consumer would believe that body washes are that harsh, and that demonstrations made clear that competing products actually strip away nutrients.

Although some of the Dove ads did not specifically name a competitor, the NAD agreed with Dial that one of the messages reasonably conveyed is that competitive body washes, including Dial Spring Water body wash, are significantly harsher than Dove Deep Moisture. Because Dial's body washes are market leaders, it would not be unreasonable for consumers to interpret the unqualified harshness claims to include its products.

As support for its harshness claims, Dove relied upon existing scientific literature which states that body wash can damage skin proteins and lipids (and is therefore "harsh"), but the NAD said more support was needed for the challenged ads. "While scientific literature may establish the general principle that 'some body washes can be harsh' it is not sufficient support for the message reasonably conveyed by the advertising at issue – that competing body washes, including Dial, are significantly more damaging to the skin than Dove Deep Moisture. Such a comparative performance claim would need to be supported by testing which is applicable, properly conducted, and yields statistically significant and consumer meaningful results." The NAD recommended the discontinuation of the unqualified "harshness" claims.

Turning to the barbed wire imagery, the NAD found the message conveyed to be false and disparaging, even though consumers were unlikely to take it literally. Accordingly, the NAD also recommended that the images be discontinued. No evidence was submitted to support such a strong message that competing products caused skin damage, the NAD noted. In fact, Dove's testing revealed that one of the Dial body washes was actually milder than Dove's Deep Moisture.

Turning to the barbed wire imagery, the NAD found the message conveyed to be false and disparaging, even though consumers were unlikely to take it literally. Accordingly, the NAD also recommended that the images be discontinued. No evidence was submitted to support such a strong message that competing products caused skin damage, the NAD noted. In fact, Dove's testing revealed that one of the Dial body washes was actually milder than Dove's Deep Moisture.

Finally, the NAD recommended that Dove discontinue an establishment claim that Deep Moisture provides the "proven best care," as it lacked support to show that it conditioned the skin better than other body washes.

To read the NAD's press release about the case, click here.

Why it matters: The decision was a total wash for Dove, as the NAD recommended that it discontinue the challenged advertising claims. The decision also reflects a trend that the NAD is getting tougher on disparaging and comparative advertising claims, even where a competitor is not named. While expressing respect for the self-regulatory process, Dove said it plans to appeal the decision to the National Advertising Review Board.