Earlier this month, I blogged about NAD’s first COVID claim case.  There, as I reported, NAD recommended that Your Superfoods modify its advertising for dietary supplements. Although the owners of the company did not explicitly claim in their marketing video that their supplements would prevent or cure coronavirus, they did refer to the virus as a reason why taking supplements to boost immunity is so important. This is why NAD was concerned that the video communicated an implicit claim that the supplements could prevent COVID-19.  The advertiser agreed to discontinue the video and avoid making express or implied claims about COVID prevention. 

Now, again as part of its routine monitoring program, NAD initiated an action with Provezza Health concerning a social media post for Provezza Elderberry Syrup.  The post stated that the syrup provides “Potent Immune Support During A Severe Season” and that “Provezza is highly concentrated to deliver antioxidant action for immune defense.” NAD was concerned that the post conveyed the implicit message that taking Provezza Elderberry Syrup could protect users against COVID-19, notwithstanding the fact that the virus is not mentioned in the post.

Notably, NAD pointed to consumer reviews on Amazon.com which "expressly or impliedly" tout Provezza Elderberry Syrup’s benefits in treating COVID-19. Although NAD did not recommend the removal of these reviews, having found that they were not solicited in a biased manner nor highlighted by the advertiser, NAD encouraged the advertiser “to engage with these or other reviews that expressly or impliedly refer to product benefits against COVID-19 to make clear that its product does not protect users against COVID-19.”  In other words, NAD recommended that the advertiser address the incorrect views expressed in the product reviews on a third party site. Moreover, it appears that these reviews were relevant to NAD’s analysis of the potential COVID prevention claims communicated by Provezza’s immunity defense post on another platform.

Is any mention of immunity defense now implicitly a claim about COVID prevention? Will advertisers always be expected to correct incorrect consumer reviews on platforms they do not control, an obligation not imposed by law?  Does NAD always look at consumer reviews to help them determine what implied claims are communicated by the advertiser’s other advertising?  

This case Decision, though very short, raises some intriguing and difficult issues.  And while I can’t look into a crystal ball to find the answers, I would say that advertisers should be especially cautious in the current climate with any claims that could potentially communicate serious health benefits, particularly relating to COVID.  

As NAD’s Decision noted, this is an “unprecedented time” during which NAD will fulfill its “public interest mission to protect consumers.”

Case Report #6380.