Two recent cases explore trash talk, more formally known in the ad law world as “denigration.” When it’s okay and when it falsely disparages a competitor is a common issue at NAD and it’s important to know the ground rules. Advertisers may love to trash talk their competitors, or a competitive category of products, to distinguish their own products and establish their superiority but it’s easy to go too far.
In a challenge brought by Bath & Body Works, NAD examined a number of claims made by Goose Creek Candles that the challenger argued were explicitly or implicitly falsely denigrating of B&BW and its products. Although the advertiser permanently discontinued a number of the claims during the pendency of the review, NAD examined the remaining ones, including this: “Avoid the harmful chemicals found in other body care products.” The claim appeared on the advertiser’s site with a picture of the advertiser’s products and the title “Goose Creek body care products are clean, cruelty-free, vegan, non-GMO & dermatologist tested.” NAD determined that one message reasonably conveyed is that B&BW body care and other competitive body care products contain harmful chemicals and that such a claim “holds great weight with consumers and can sway their purchasing decisions.”
However, NAD determined that the record did not support the claim of harm because not only do B&BW products not contain the two ingredients highlighted by Goose Creek as harmful (based on a news article) but the two ingredients “are not categorically determined to be harmful chemicals and are both approved in certain amounts by the FDA for certain uses in pharmaceutical and cosmetic formulations.” Interestingly, NAD also noted that the fact that these ingredients (if actually found in a product) can cause irritation or allergic reactions doesn’t necessarily mean that they are “harmful.” Accordingly, NAD recommended that Goose Creek discontinue the express “avoid” claim and the implied claim that B&BW body care products and other Goose Creek competitors contain harmful chemicals. (Goose Creek Candles, LLC (Candles), Report #7237, NAD/CARU Case Reports (October 2023)).
In another case, Unilever challenged claims made by Dr. Squatch for its Jukebox brand of soaps. Jukebox distinguishes itself from traditional soap brands as being “real” soap made with natural ingredients. Its advertising included claims like “ditch the chemical detergents” and “Us: Non-toxic ingredients; Them: Toxic ingredients” which Unilever (unsurprisingly) alleged to be falsely denigrating. Although Dr. Squatch agreed to permanently discontinue a number of claims, including these two, it did not discontinue a claim that competing soap products are “detergents.” Unilever argued that characterizing traditional soaps, like DOVE, as detergents is “inconsistent with consumer understanding and convey[s] misleading, negative messages” and that ‘detergent’ claims convey the message to consumers that they are unknowingly showering with the equivalent of Tide and that competing bars and body washes are harsh and unsuitable for the skin.” (Quite an argument given that Unilever makes laundry detergents itself, though here it is taking a swipe at a P&G product.)
Dr Squatch defended the claim based on its literal truthfulness. And, indeed, NAD determined that the claim characterizing traditional soaps and body washes as “synthetic detergents” is, in fact, technically accurate because of the FDA classification of such products. However, as NAD has frequently determined, a literally truthful claim can nonetheless be misleading. Here, NAD determined that “consumers might not be familiar with the FDA’s technical classifications of skin cleansers and would rely instead on the common understanding of the term ‘detergent.’ Consumers reasonably understand the word detergent to describe a household cleaning product for washing dishes and clothing and one that is associated with a level of harshness that would be unsuitable for human skin.” Accordingly, NAD concluded that the Advertiser’s “detergent” claims may reasonably convey the misleading message that competing products, including Dove, are harsh and damaging. And, because Dr Squatch failed to support such a message, NAD recommended that the advertiser discontinue its “detergent” claims or modify them to avoid conveying the message that competing bars and body washes are harsh. (Dr. Squatch, LLC (Jukebox Soap), Report #7195, NAD/CARU Case Reports (August 2023)).
Dr Squatch appealed but NARB upheld NAD’s determination that referring to competitive products as being or containing “detergents” communicates the unsupported message that Unilever's body wash products are harsh to the skin. (NARB Panel #323)(October 2023)
NAD’s longstanding principle that denigrating claims must be truthful, accurate and narrowly drawn so that they do not falsely disparage a competitor’s product still applies and is the bedrock of this analysis.
Literal truthfulness is not necessarily sufficient to justify a disparaging claim. NAD will always look to what is also reasonably conveyed by the claim and if that message is potentially misleading, the claim will fail.
Compliance (or lack of compliance) with regulatory definitions and standards also does not end the analysis: NAD will still grapple with the reasonable takeaway from a claim.
Advertisers – particularly ones in the “natural” space – often try to set their products apart from “traditional” ones by pointing out the absence of certain ingredients or components in the traditional products. However, unless the advertiser can support the claim that is frequently implied in these types of ads that the presence of those elements in the traditional product cause harm, whether to people, animals or the environment, NAD may well determine that the trash talk is unduly and falsely disparaging.
And, though not specifically at issue in these two cases, it’s important to also remember that humor will not save a falsely disparaging message: just because an ad is funny doesn't mean consumers won't believe the underlying message being conveyed about the competitive product that’s the butt of the jokes. (Remember this case?)