Three recent NAD cases provide good reminders about some issues and claims that advertising lawyers regularly address.

#1 claims 

In this SWIFT case, a maker of household fans challenged claims by DREO, an appliance manufacturer.  DREO claimed to be the “No. 1 Fan and Heater Brand in the U.S.,” a claim the challenger disputed.  The challenger claimed that relevant data from the market research company Circana, with data from both major online and brick and mortar retailers, showed that it was the clear market share leader, not DREO. DREO argued that its No. 1 claim was expressly limited to specific channels and timeframes, as stated in a disclosure, and in those channels and timeframes, it was the leader. 

NAD, recognizing that a #1 claim is “widely understood and accepted to mean that the advertised brand enjoys the highest market share in its category, and that such a claim is “very influential” with consumers, determined that DREO’s claim and its substantiation were not a good fit.  Here, the main message conveyed by DREO’s claim was that DREO was the overall sales leader, so its disclosure that the claim was based on a win only in limited channels and time frames, contradicted the overall message.  NAD accordingly recommended that DREO discontinue its #1 Brand claim.  Report #7424.

Takeaways:

• It’s a big claim so you need big support: If you say you’re the #1 brand, or that your product is #1, you’ll need to show that you have the highest market share for the brand or the product (as applicable) category-wide. Anything more limited should be addressed in the claim itself, not a disclosure. 
• Qualify, don’t contradict: Disclosures can appropriately be used to qualify, but not contradict, a claim.
• But remember: not all #1 claims are about sales and market share. If you’re touting (or implying) a #1 position based on performance, or a third party rating, your substantiation will have to provide a reasonable basis for such a claim and highest sales won’t suffice.

Demonstrations 

In this case, Louisiana-Pacific challenged a number of fire-resistance related claims made by James Hardie for its home siding products.  The advertising included videos with interviews of wildfire survivors, with claims about the houses that didn’t burn because of their use of James Hardie siding. The advertising also included a video product demonstration, purporting to show how the James Hardie fiber cement siding compares to competing products when exposed to flame. In the demonstration, after the products were set aflame with a blowtorch, three of the four sets of siding were engulfed in flames, but the set using James Hardie siding remained intact (with superficial charring) after 10 minutes of exposure. 

Among several other issues addressed in this case, NAD analyzed whether this demonstration conveyed the implied messages that Hardie’s flammability comparison test showed the performance of various exterior sidings when exposed to fire and whether James Hardie fiber cement siding significantly reduced the risk of fire.  Although the advertiser introduced a consumer perception study conducted by one of the leading survey experts showing that a material number of consumers did not take away the message that Hardie fiber cement eliminated the risk of fire damage to the home, NAD did not believe that the survey sufficiently answered the question of whether consumers take away the implied message that James Hardie fiber cement siding significantly reduced the risk of fire damage. 

Therefore, putting itself in the shoes of a reasonable consumer, NAD made that judgment itself. And, doing so, it concluded that consumers could take away such a message of significant reduction of risk. In so finding, NAD was swayed by the “striking” contrast between how the James Hardie siding structure vs. the three competitor structures appeared after the demonstration, including that “the high-velocity flames of a blowtorch could barely scorch Hardie siding.”  This message, according to NAD, was reinforced by the observations by the firefighters shown in the video that there was no encroachment of the fire to the inside surface.  Thus, NAD concluded that consumers could reasonably take away a message from the demonstration that James Hardie fiber cement will significantly reduce fire damage, even with no other protective measures or safeguards, a message not supported by the advertiser’s substantiation.  Accordingly, NAD recommended discontinuing or modifying the advertising. The advertiser appealed.

While NARB found that the demonstration was valid in showing the various sidings’ combustibility when exposed to a blowtorch flame, it was concerned that the video conveyed a message that the advertiser’s fiber cement siding will protect a consumer’s home from fire damage caused by external fires, a message underscored by the firefighter’s statement he intended to use the siding on his home. (NARB also appeared to find the consumer survey more probative than did NAD.)  Accordingly, like NAD, NARB recommended that the message be modified so that consumers understand that non-combustible siding is only one of several elements that in combination may help protect a home from fire damage caused by external fires.

A second demonstration at issue was a display at a trade show for professional builders: there, the advertiser displayed a clear plastic box with four compartments, two of which were filled with water for six months, to demonstrate the difference between wood composite siding and fiber cement when immersed in water. The wood composite piece in the water-filled compartment showed swelling but the fiber cement piece did not, at least in comparison to the pieces not immersed in water.  Both NAD and NARB found the demonstration misleading and recommended its discontinuance because the wood composite siding was not prepared in accordance with its instructions before being immersed in water and the demonstration itself did not represent real-world conditions.   Case Report #7338 and NARB Panel #333. 

Takeaways: 

• Keep it real: since demonstrations are, in effect, an invitation to consumers to see with their own eyes what the advertiser is claiming, they must not only depict how a product actually performs in the demonstration but how it performs in the real world. 
• Keep it real, part 2: if a product must be prepared or used in a certain way according to its instructions, or if there are qualifications about its performance, those must be reflected in the demonstration.
• Beware of implied claims: as with all advertising claims, advertisers must consider what could potentially be conveyed by the demonstration, not just the accuracy of what is shown. If even a significant minority of consumers could reasonably take away a particular message from the demonstration, the advertiser will be responsible for substantiating that message.

Health Claims 

In a routine monitoring case, NAD examined claims made by The Magni Group that its product, MagniLife Knee Pain Relief Soothing Gel, quickly reduces pain, swelling and inflammation from sore muscles, joint discomfort, and injuries. To support its claims, the advertiser provided a number of studies for certain of the ingredients contained in the gel, but no study related to the product itself. 

NAD found that, lacking any testing on the product itself, the advertiser did not have a reasonable basis for unqualified claims that the product provides the benefits it touted. Further, NAD also determined that the evidence provided, consisting of abstracts of studies, studies performed on mice or rats, and in vitro studies, was inadequate to even support the claims about the ingredients. While animal and in vitro studies can provide useful supporting or background information for health claim, they are insufficient to substantiate them without confirmation through randomized human clinical trial. Similarly, abstracts of studies are insufficient to substantiate claims because it is not possible to evaluate the quality of the research data and the conclusions drawn by the authors from an abstract. Accordingly, NAD recommended the discontinuance of advertiser’s claims.

Takeaways:

• Product claims generally need product support: Health-related product performance claims should be supported by competent and reliable scientific testing of the actual product, as marketed to consumers, and not just its ingredients. 
• Ingredient studies should align with the ingredients in the product: For an ingredient claim, a study on an ingredient with the same dosage, formulation and route of administration as in the product itself provides the most reliable support. 
• Study population should also align: The tested population in a study should be representative of the population to which the claim is targeted.

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