A couple of recent cases from NAD underscore the importance of analyzing the type of substantiation you have to determine if it really provides a reasonable basis for the particular claim you want to make. Or, as NAD always asks, is there a "good fit" between the claim the support?  As these cases demonstrate, not all support is the right kind of support, no matter how good.

Zillow, Inc. challenged claims made by its competitor, CoStar Group in connection with its Apartments.com website network. The advertiser made a number of claims about the popularity of its network, like “the most popular place to find a place” and “#1 site for renters.” NAD noted that “[m]ost popular claims send a powerful message that the brand is preferred over all others, and it weighs heavily in consumer buying decisions.” The advertiser provided its website traffic data to support its “Most Popular” claim because that data indicated that Apartments.com has the most unique visitors.

However, NAD determined that while the number of unique visitors measures how many consumers visit Apartments.com when searching for a place to rent, “the Advertiser’s unqualified claims that Apartments.com is “#1” or “most popular” tells consumers that the website is used by more consumers than any other website to find a rental.” And because renters typically undergo a more extensive process than visiting a website once, the total number of visits to a website is another important indicator of popularity. Accordingly, while the advertiser established that it had the most unique visitors to its site, such evidence was not a good fit for its “most popular” claims. (Case Report #7045)

In another case, Procter & Gamble challenged advertising by SmileDirectClub for its Fast-Dissolving Whitening Strips. At issue (among other things) was the advertiser’s “2x whiter” claim, a comparison to Crest Whitestrips, a P&G brand. To support its claim, the advertiser introduced the results of a home use test it conducted, fielded by an independent research firm. As described in the Decision, this was a pretty robust test: there were many participants, they were blinded, and they were provided with use instructions and a shade guide to evaluate their tooth color baseline and improvement at home. And the results of the study showed that majority of users of the advertiser’s product observed a tooth shade change of three shades or more, while roughly half as many Crest users experienced three shades or more of change.

However, P&G argued that, although the attribute at issue – tooth whitening – is visible to the naked eye to users themselves and the product is intended for home-use, the home use test did not provide adequate substantiation for the claim.  Rather, P&G argued, “teeth whitening claims need to be supported by a properly designed clinical study that is sized appropriately, uses appropriate inclusion and exclusion criteria, is randomized, and is balanced across treatments.” Further, it argued that “tooth color should be evaluated by a blinded-to-treatment expert or objectively measured with an instrument at the designated time points and the mean changes for each treatment must be statistically significant at the time points of interest.”

NAD agreed. It determined that an objectively verifiable claim “should be substantiated with objective testing that goes beyond simply asking consumers for their opinion” even if the opinion is about the appearance of users’ own teeth. Accordingly NAD found that the consumer use test was “not a good fit” for advertiser’s objective quantified performance claim that its product get teeth “2X whiter.”(Case Report #7091)

It’s very frustrating for an advertiser to develop testing or other substantiation only to find that it doesn’t work for the claim it had in mind. Sometimes, though, advertisers try to fit a square peg into a round hole: they try to make a claim with substantiation that’s simply not a good fit, as here. I’m always leery when I hear from an advertiser’s marketers about the claims they want to make before even knowing if they’ll be able to substantiate them. But at least in that situation there’s an opportunity to figure out what claims (express and implied) are really going to be communicated, what testing or other support will be needed specifically for those claims, and how to best go about getting it.

Addendum on Apartments.com case (8/25/22): After appeal by CoStar, NARB determined that one reasonable message conveyed by the Most Popular tagline is that the advertiser’s site is the preferred site for researching available rental properties, a subjective standard, and that because the advertiser didn't have any consumer research to support that message, the panel recommended that the Most Popular tagline be discontinued.