Providing fodder for my inquisitive ad law brain is a new campaign blanketing NYC subway cars. I don’t like to call out specific advertisers in my Subway Series posts, but suffice it to say that this campaign (or, at least, the products advertised in it) would be of great interest to the one member of my household who has a tail.
The campaign features two photographs: one, the advertiser’s product; the other, the unnamed competitor’s or competitors’. The photographs are accompanied by headlines contrasting the two, highlighting the purported benefits of the advertiser’s product and all that’s evil about the competitors’. (I'm not exaggerating.)
This is not an unusual approach for advertisers: promote the virtues of your product in contrast to all the bad things about the other’s or others’. But it’s that plural possessive that is of interest to me here. If the advertiser doesn’t name a specific competitor, what’s the impact from a truth in advertising perspective?
At least two issues must be considered:
First, if the advertiser is not naming a specific competitor, against whom must the claims be truthful? All competitors? Just the leading ones? What NAD tells us, in a variety of cases addressing this type of scenario, is that an unqualified claim about "others" would likely be understood by consumers to be referring to larger competitors, dominant players in the marketplace and/or a significant portion of the marketplace. What that means is that, at a minimum, a big player in the relevant industry would almost certainly have standing to challenge a claim about "others" that was unduly disparaging or false and misleading as to that competitor and its products or services, even if it's truthful as to others.
Second, what is the line between disparaging and unduly disparaging? NAD doesn't prohibit advertisers from going after their competitors, even meanly, but the disparagement must be truthful, accurate and narrowly drawn. As NAD often notes when analyzing claims that denigrate rivals, named or unnamed, "an advertiser’s right to tout the benefits of its product must be carefully balanced against a competitor’s right not to have its product falsely disparaged." And humor or exaggeration can't necessarily save an ad from crossing that line. As we noted in a previous post about commercials memorably featuring the line "tastes like [gas] [ass]," and which didn't name a specific competitor but led to a challenge by one of them, no amount of humor can save an expressly false claim. And if the ads don't use humor? It may be even harder to defend the disparaging statements.
The question, as always, is whether the denigrating statements about the competitor(s), and the comparisons to the advertiser's products, viewed in the context of the specific ads in question, communicate objective claims, requiring substantiation, or are so broad, hyperbolic or fanciful as to be deemed puffery.
On which side of the line do these new subway ads fall? I leave that to you, dear reader, to decide for yourself when you're next on the New York subway.