P&G, maker of Metamucil, challenged claims by GlaxoSmithKline for its competitive laxative product, Citrucel. GSK claimed, among other things, that unlike Metamucil, Citrucel does not ferment. In 1994, NAD determined that GSK's claims were supported. And in 1997, when P&G tried to re-open the case, NAD refused, stressing the importance of finality to the self-regulatory process.
Now, once again, P&G requested that NAD re-open the case, on the basis that current science demonstrates that Metamucil's main ingredient also does not ferment, undercutting GSK's exclusivity claim. NAD agreed, finding that the existence of human studies directly related to the digestion of fiber in the human body – compared to the additional laboratory testing at issue in P&G's first request – satisfied the procedural requirement of "extraordinary circumstances." Accordingly, NAD was willing to consider the challenged claims on their merits.
NAD's willingness to re-open this old case demonstrates its recognition that advertisers' claims must sometimes be substantiated anew to reflect current science.
P&G requested that NAD re-open the 1994 case and argued that a shift in the underlying science related to psyllium and digestion has demonstrated that psyllium does not ferment, effectively contradicting NAD’s earlier decision. GSK argued that allowing this challenge to go forward in the absence of any new data demonstrating a shift in scientific consensus would compromise the integrity of the self-regulatory system. Specifically, it would mean that any case decided by NAD can be reopened simply because one of the parties advances a new theory which, it claims, would have impacted the results that were before NAD.
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