I was really hoping that this was one of NAD’s routine monitoring cases. But no. Just your ordinary competitive challenge, albeit in an industry new to NAD: cannabis storage products. This may be one of the clearest signs of mainstream acceptance of the product category.

The challenge concerned claims made by Kinzie Advanced Polymers, LLC, d/b/a Grove Bags for its TerpLoc® cannabis curing and storage products.  The challenge was brought by Calyx Containers, a competitor.  At issue were Grove’s express and purported implied claims that its products maintain moisture stability and preserve cannabinoids and terpenes better than conventional storage methods.

NAD evaluated the performance testing conducted by advertiser (the details of which I urge you to read in the full Decision if you’re in the cannabis growing, curing or storage industry) and concluded that it provides support for the performance of TerpLoc® packaging under controlled conditions.  It also evaluated the third party studies submitted by the advertiser and found that they  also constitute competent and reliable evidence of product performance under controlled conditions, including claims comparing performance to conventional storage methods. 

In all cases, NAD found that the results of the testing were dependent on specific conditions of use, including starting moisture content and fill level. The challenger argued that these use conditions were inadequately communicated and thereby did not appropriately qualify the claims.  NAD agreed (in part). NAD determined that, notwithstanding the fact that the advertiser included product use instructions, those instructions were not well enough communicated to qualify certain of the performance claims.  

Specifically, it found that the online instructions were listed under a section labeled “Tips” and in the “FAQ” section and that QR codes provided to users directed them to those same webpages, “which do not put consumers on alert that the product will not work without strict adherence to the instructions.” NAD noted too that the product packaging also failed to inform consumers that they must strictly follow the product use instructions in order to achieve certain of the quantified performance benefits touted.  Accordingly, NAD recommended that Grove Bags clearly and conspicuously disclose all the material conditions of use in close proximity to the challenged claims in order to avoid conveying an unqualified performance message.

Why am I blogging about this niche industry case?  (And how I wish the Decision had been issued on April 20^th!)  Aside from the obvious hook of getting weed into a blog headline, the legal point is an important one: if a company’s performance claims are accurate only under certain conditions and types of use, those conditions must be clearly and conspicuously stated in the claim itself or in proximity to the claim. Product use instructions cannot, on their own, qualify a performance claim if what is communicated in the advertising is guaranteed or universal performance.