All Strawberries are Produce, But Not All Produce Is Strawberries
Rubbermaid marketed its FreshWorks Produce Saver Containers as able to “Keep produce fresh up to 80% longer.” However, this statement was disclaimed with a clarification “[b]ased on strawberries in FreshWorks containers vs. store packaging.” NAD felt consumers would understand the claim to apply to other produce, not just strawberries, and evidence submitted failed to demonstrate that any other produce enjoyed a similar shelf-life extension.
Rubbermaid is contesting NAD’s findings, and will appeal decision to the National Advertising Review Board (NARB).
jbho: a reminder that claims must be substantiated by a sufficient number of representative tests.
Context Matters In Determining Whether Superlative Claim Is Measurable Or Mere Puffery
PLZ Aeroscience labelled its Sprayway products as ‘World’s Best.’ In evaluating the claim, NAD considered the prominence of text stating ‘World’s Best’ in the product description, as well as the adjacent imagery. Since ‘World’s Best’ appeared in a small font above the ‘Glass Cleaner’ next to a “nostalgic image of (a) woman in an apron,” NAD felt the claim was an exaggeration, and not a performance claim.
Thus, the general impression of ‘World’s Best’ was more a reflection of pride in the product, and constituted puffery. The claim was not meant to be objectively provable, and evidence of testing against competitor products was not required.
jbho: there was no discussion of the political correctness of the imagery. Just sayin’.
Apparently, the term ‘World’s Best’ was registered as part of the product name; a registered trademark since 1995 (Registration Number 1881769). Although that is not called out in the NAD decision.
Note also that NAD declined to use studies provided by PLZ or the complainant, finding that “both parties used ‘a novel design’ for their studies that yielded ‘widely divergent’ results.” A reminder that any studies used in substantiation must be unbiased and independent.
Finally, the complainant also challenged PLZ’s ‘Made in USA’ claims. PLZ agreed to pull those claims rather than provide substantiation, and NAD dropped its investigation of those claims. Given the recent uptick in ‘Made in USA’ enforcement/litigation (see example), it will be interesting to see if NAD will have the last word on those claims.
‘Best’ Claims are Puffery, Discontinue Exclusivity Claim
Almond Breeze ran ads claiming:
• “Maybe Almond Breeze tastes so good because it’s the only almond milk made with California grown, Blue Diamond almonds.”
• “The best almonds.”
• “The best almonds make the best almond milk.”
NAD found that although superlatives like ‘best’ or ‘greatest’ accompanied by attributes that suggest a product is comparatively better required substantiation, here there was no measurable claim, so the comments were likely to be interpreted as puffery. In the context of entire ad, the claims reflected Blue Diamond’s corporate pride in its product, not a comparative claim.
However, the claim ‘only almond milk made with California grown, Blue Diamond almonds‘ did require substantiation. Since Blue Diamond sold its products to bulk-purchase manufactures, it was likely other almond milks could contain Blue Diamond almonds as well. Thus, that claim must be discontinued.
jbho: I generally recommend against using absolutes in advertising copy. However, the line between puffery and an objectively provable claim is not always clear. Unfortunately, there are no bright-line rules, and each instance requires a general impression test. Good to have examples like this to help clarify.
Insufficient Changes Referred To FTC
The NAD ruled against Body Armor for its ‘Ditch Artificial Sports Drinks’ ads that implied Gatorade products contained artificial colors, sweeteners and flavors by featuring a bottle similar to a Gatorade bottle. However, Gatorade’s leading product – Thirst Quencher – is not artificially sweetened. As a result, NAD recommended the advertiser discontinue its claims and Body Armor (grudgingly) agreed to comply. However, the only change made was to change the bottle depicted in the ad. This change did not limit the claims to specific competing drinks, so the initial confusion in the ad still existed. As Body Armor declined to make additional changes, the matter has been referred to the FTC.
jbho: another reminder how industry polices itself and those standards do have teeth.
NAD Finds Claims Don’t Need Substantiation
A competitor challenged Sherwin-Williams claims that its CoverMaxx spray paint provided ‘maximum coverage’ and ‘ultimate coverage.’ NAD determined that the “seals, primes, and protects for maximum coverage” claim was adjacent to four bullet points stating:
• “Smooths uneven surfaces”
• “Increases Paint Adhesion”
• “Ensures true paint color is achieved”
• “Features the EZ Touch 360 conical tip”
In this context, NAD did not see this as a comparative, superiority claim requiring substantiation. As there were no absolute or measurable messages about product performance, the ‘maximum’ and ‘ultimate’ claims would be viewed as puffery.
jbho: a nice example of how to tout your product while avoiding any comparative claims.
Health Claims Supported
Olly Public Benefit Co. marketed its ‘Kids Mighty Immunity Supplement’ as promoting general wellness through support of the immune system. Claims challenged by the Council for Responsible Nutrition (CRN), included:
• the product was formulated to help support little immune systems in the biggest way
• the ingredient beta glucan yeast (Wellmune) promoted cellular defense mechanisms
• the product contained super food elderberry used for centuries to support the immune systems
• the product contained essential mineral zinc that helps keep immune cells functioning in tip-top shape
NAD found that the wellness messages in ads and on the product packaging focused on the benefits derived from the product ingredients (vitamins, zinc and beta glucan yeast). As Olly was able to present literature and objective studies supporting benefits of the ingredients, a clinical study of the ‘Kids Mighty Immunity Supplement’ product was not necessary.
NAD also appreciated that fact the Olly avoided any express or implied claims regarding disease prevention or curative properties of the supplement.
jbho: an example of how to tailor and support product effectiveness claims.
Health Claims Referred To FTC
Adderin claimed its dietary supplement would improve memory and mental focus, claims challenged by the Council for Responsible Nutrition (CRN). Claims included:
• Increases IQ, memory and focus up to %100
• Raises levels of focus and performance every day by 300%
• Sky-rocket concentration by 312%
• Increase IQ Scores by 77%
Since Adderin failed to respond to repeated requests from the NAD for substantiation, the matter has been referred to the FTC
jbho: as always, any performance claims must be substantiated by objective studies/research.
And another reminder that industry standards do have teeth.
Price Claims Must Be An “Apples to Apples” Comparison
Hefty ran ads promoting its trash bags as stronger and cheaper than other bags. The Ads in question featured wrestler John Cena with a background chant of “Hefty, Hefty, Hefty”, and comedian Rob Schneider with a background chant of “Wimpy, Wimpy, Wimpy”. The ads ended with text & voice stating “COSTS LESS THAN GLAD” with a smaller text disclaimer “Based on avg. retail price per bag. Nielsen 52wks ending 6/4/16.”
NAD felt the implication that Glad trash bags were weaker that Hefty was not supported by evidence in the record, and recommend the claims be discontinued. Although Reynolds (Hefty maker) disagreed with the assessment, they agreed to comply with the NAD recommendation on performance claims.
NAD further determined that the price comparison required evidence that each Hefty line costed less than the equivalent Glad-branded trash bag, regardless of where they were purchased. Since Glad trash bags were generally available at wholesale club stores at lower prices than Hefty, a broad claim could not be supported and recommend the claims be discontinued. Reynolds disagreed and will appeal the recommendation on pricing claims.
UPDATE: 10Aug2017 – The National Advertising Review Board (NARB) upheld the NAD decision finding that Glad maker Clorox provided substantial evidence of pricing comparisons of premium and non-premium bags, sold in retail outlets and warehouse/club stores, confirming Glad bags were cheaper 46% of the time.
jbho: demonstrates the importance of having an objective, independent opinion to back up any advertising claims.
Additionally, the research must be timely and relevant to the claims. NAD noted that it nothing in its decision would have prevented Hefty from making a valid ‘low price’ claim in a stand-alone context or site-and-time-specific manner. So the scope of the comparison matters.
Puffery Appeal On “Best” and “Easiest” Claims
P&G ran ads stating its Easy Ups training pants were “the best way to potty-train” and “the easiest way to underwear.” Kimberly Clarke challenged the claims, and the NAD ruled P&G had not provided sufficient evidence to support the “best” and “easiest” claims – claims which were objectively verifiable. P&G argued the claims were puffery, and it would appeal the NADs recommendation to the National Advertising Review Board (NARB).
jbho: one of the reasons I’ve always recommended against using absolutes in advertising.
According to the press release, “statement is considered puffery when it is overly vague or highly subjective and not capable of measurement … however, … the line between puffery and an objectively provable claim is not always clear (and hinges on) whether it is likely to be understood as an expression of the advertiser’s opinion or a factual claim for which consumers would expect an advertiser to have substantiation.” A blatant example would be “best pizza on main street” (measurable) v. “best pizza in the galaxy” (puffery).
So it’s possible NARB could rule that based on the context of the statements, the “best” and “easiest” claims do constitute puffery. I guess we’ll have to wait and see. In the mean time, take a look and let see what you think https://youtu.be/-eQYmu3BgIY.
NAD Refers Comparative Pricing Claims to FTC
Total Wine ran ads claiming its eeryday prices were lower than a discount competitor. Total Wine declined to respond to NAD’s inquiry, and the matter has been refered to the FTC.
jbho: a reminder that industry standards do have teeth.
Hard-To-Read Footnote In Lowe’s Ad Bait And Switch?
NAD recommended Lowe’s discontinue sale advertising touting 20% savings, as the discount was not offered on most major brands. Although Lowe’s amended its ads to say ‘up to’ 20%, NAD felt it failed to adequately disclose the limitations on the ‘up to’ offer (Whirlpool, Maytag, KitchenAid, Amana, GE, LG, Samsung, Frigidaire, Electrolux, and Bosch brands were limited to a maximum 10% discount). Additionally, Lowe’s failed to provide evidence the 20% offer would apply to an appreciable number of consumers under normal circumstances.
Lowe’s agreed to pull the ads and agreed to disclose material limitations in a clear and conspicuous manner in future ads.
jbho: any limitations must be clearly and conspicuously disclosed close to the triggering claim, and presented in a way that consumers are likely to notice, read, and understand. And availability of offers must be sufficiently quantified.
For the record, it appears NAD requires that for an ‘up to’ savings claim to be valid, at least 10 percent of inventory included in the offer must be available at the maximum advertised savings.
‘4x Better’ Claims Supported
Colgate-Palmolive advertised its Enamel Health Mineral Repair (EHMR) toothpaste “Strengthens weakened enamel 4x better by replenishing it with vital minerals*.” with a disclaimer “*vs. ordinary fluoride toothpaste after 3 applications in an in situ study.”
NAD found the product testing used generally accepted measurements, used a double-blind, cross-over model to prevent bias, and produced statistically significant results.
However, NAD recommended Colgate-Palmolive modify its disclosures to more clearly and conspicuously inform consumers the comparison was between the premium EHMR toothpaste and competitor’s normal toothpastes.
jbho: any comparative claims must be substantiated by objective studies/research. And any needed disclosures must be clear and conspicuous, and can’t contradict the claim.
Two More FTC Referrals
The Electronic Retailing Self-Regulation Program (ERSP) has referred two Solar marketing firms (SolarExpertsUSA.com & BestSolarExperts.com) to the FTC for failing to respond to ERSP inquiries around allegedly unsubstantiated savings claims.
jbho: a reminder the industry standards can have teeth. At a recent NAD conference the FTC provided statistics to show they actively engaged in 54% of cases referred by NAD (http://www.adlawaccess.com/2016/10/articles/ftc-associate-director-for-advertising-practices-elucidates-the-commissions-handling-of-referrals-from-nad/).
Another Trampoline Maker Jumps To Conclusions
Springfree made claims about the safety of its “World’s Safest Trampoline” that NAD felt were not substantiated by the limited evidence provided. The evidence supported neither the absolute performance claims, nor the comparative claims disparaging its competitors. While NAD recognized that the Springfree design did offer real and meaningful benefits to consumers – safety benefits it is free to tout – the claims must be truthful, accurate, and not misleading. Thus the ads in question must be pulled.
jbho:: any comparative claims must be substantiated by objective studies/research.
Also serves as a reminder to avoid absolutes in marketing copy.
Don’t Jump To Conclusions In Your Advertising
Trampoline maker JumpSport ran a website that ranked trampolines, but allegedly failed to alert consumers the site was operated by JumpSport, reviews and ratings were written by JumpSport, and product testing was designed and conducted by JumpSport. NAD found the site content, presented as an editorial site, to be inherently misleading. While disclosures indicated testing was performed by JumpSport, these disclosures contradicted the advertising claims of independent testing. Additionally, NAD found JumpSport testing methodologies to be unreliable. Thus the ads must be discontinued.
jbho: if you are going to cite product tests, make sure they are verified by an independent 3rd party. And again, disclosures can’t contradict the claim.
NAD Refers Two Advertisers To The FTC, One To The FCC
NexGrill allegedly made unsubstantiated claims about its Evolution Infrared Plus Grill. (http://www.asrcreviews.org/nad-refers-advertising-for-nexgrill-evolution-infrared-plus-grill-to-ftc-after-advertiser-fails-to-fully-respond-to-nad-inquiry/)
Verified Forskolin allegedly made unsubstantiated claims about its dietary supplement (http://www.asrcreviews.org/nad-refers-claims-for-verified-forskolin-to-ftc-for-further-review-after-site-operator-fails-to-respond-to-nad-inquiry/)
In both of the above cases, NAD recommended the unsubstantiated claims be discontinued, but the advertisers failed to submit statement indicating whether they would comply with NAD’s recommendations or appeal NAD’s findings. Therefore NAD referred both cases to the FTC.
Sprint allegedly made misleading claims in television commercials that consumers could have the same rate plan for half the price simply by switching to Sprint (in part for failing to sufficiently disclose its $36-per-line activation fee). Despite changes by Sprint, NAD felt the sweeping rate comparisons were still too detailed to be fully explained in a 15 or 30 second TV spot.
Sprint indicated would make some, but not all, of the recommended modifications. Therefore NAD referred the case to the FCC.
jbho: A reminder that industry standards do have teeth.
Clear And Conspicuous Disclosures Satisfy NAD
Slim-Fast ran print ads touting the effectiveness of its advanced nutrition products. In a small white font against a gray background, a disclaimer read:
- “*Individual results may vary. Based on the SlimFast Plan (a calorie-reduced diet, regular exercise, and plenty of fluids). Check with your doctor if nursing, pregnant, under 18, following a doctor prescribed diet. © Slimfast.”
In lieu of submitting substantiating evidence about the efficacy of its products, SlimFast modified the disclaimer to appear in larger black type, in sharp contrast to the gray background. As the challenged disclaimer has been permanently discontinued, NAD felt it need not review the efficacy claims, and considered the matter closed.
jbho: interesting here that the NAD did not address the representativeness of the claims. So long as the (clear & prominently displayed) disclaimer doesn’t contradict the claim, it appears NAD may grant a wider latitude to present atypical results in advertising.
Careful With Disclaimers When Targeting Children
Kellogg’s Fruit Flavored Snacks packages featured cartoon characters a picture of a large red apple with a claim in yellow type: “Made with REAL FRUIT.” The words ‘Real Fruit’ were in larger, bold font. However, a disclosure on the side panel of the box, alongside the “Nutrition Facts” section, stated: “Made with equal to 20% fruit.” CARU recommended Kellogg avoid confusing child consumers by removing the “Made with Real Fruit” claim from child directed packaging.
jbho: A reminder that if you use cartoon characters in your advertising, the assumption may be that you are targeting children.
1st Native Ad Case
The NAD recommended Joyus modify disclosures around content featured in online magazines to make it clear to consumers they were clicking on advertisements.
In this case Joyus placed video ads for “Dr. Brandt’s Needles No More Wrinkle Relaxing Cream,” in the “Stuff We Love” section of People magazine (online edition). NAD felt Joyus presented the ads as independent editorial content of People magazine, and failed to sufficiently disclose the fact the videos were ads – both on the “Stuff We Love” page and any referring pages (e.g., the “Style Watch” pages). Joyus argued visual cues such as logos, discount offers, price information, and alternate fonts identified the content as ads, but NAD stated these were presented only when viewing the video.
Joyus agreed to implement NAD recommendations and will identify the “Stuff We Love” page as a shopping page as well as identify linked videos as shopping videos on referring pages and the “Stuff We Love” page to clarify the videos are ads before videos are played.
jbho: if you are going to present sponsored content, you must make clear at every stage (linking to, on the page, and in the content) that the content is advertising.
NAD’s investigation began with efficacy claims in the “Dr. Brandt’s” ads. When NAD noticed how the ads were presented, they expanded the investigation to include compliance with the FTC’s recently issued Policy Statement on Deceptively Formatted Advertisements (https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf). Joyus pulled the ads, but that did not prevent NAD from moving forward with the Native Advertising enforcement.
No CLAAS Response Leads To FTC Referral
Agricultural machinery producer CLAAS partnered with nutritional agriculture company Shredlege to develop machines to produce a silage feed that CLAAS & Shredlege claimed would improve digestion (and overall heath) in livestock. NAD asked for substantiation of claims, but both CLAAS & Shredlege – through their counsels – informed NAD that they declined to participate in the self-regulatory process. The matter was therefore referred to the FTC.
jbho: A reminder that industry standards can have teeth.