National Advertising Division (NAD) and National Advertising Review Board (NARB), No.2, Vol.2

NARB backs NAD’s actions in jurisdictional challenge from Colgate-Palmolive, but recommends ASRC re-examine certain rules in light of “the explosion of consumer class actions”

The Colgate-Palmolive Company (Tom’s of Maine “Naturally Dry” Antiperspirant), NARB Panel Report No. 215 (Jan. 25, 2017)

A National Advertising Review Board (NARB) panel determined that the National Advertising Division (NAD) acted appropriately in deciding against administratively closing its review of advertising claims made by Colgate-Palmolive regarding its Tom’s of Maine “Naturally Dry” antiperspirant. Competitor Unilever had previously challenged various “natural” claims about the antiperspirants, including in the product name, that were also raised in class action litigation filed in a Florida U.S. district court that resulted in settlement. (Kramer Levin’s summary of the prior NAD decision is available here.) In addition to defending on the merits before NAD, Colgate argued that NAD lacked jurisdiction because its guidelines provide for administrative closure of a case where the challenged claims are the subject of pending litigation or an order by a court. The NARB panel determined the court order in question “did not make any findings with respect to the claims challenged by Unilever, and it required no action other than what the parties agreed to in their settlement agreement.” In addition, the panel noted that NAD’s exercise of jurisdiction “posed no danger of multiple and potentially conflicting findings from tribunals because the class action was resolved without any findings as to the truthfulness or accuracy of the challenged claims,” and that judicial confirmation of the settlement also did not resolve questions regarding the truth or falsity of the claims challenged by Unilever. At the same time, the panel noted that the ASRC procedures in question “were initially drafted long before the explosion of consumer class actions.” It thus recommended that the ASRC board consider a rules clarification “to more clearly state whether, or under what terms, a settled consumer class action should result in the NAD administratively closing a challenge that involves similar claims.” It also recommended the board address whether NARB panels should consider appeals of jurisdictional matters. View the press release.

Advertiser to appeal after NAD advises certain claims regarding premium gasoline be discontinued

Shell Oil Company (Shell V-Power NiTRO+ Premium Gasoline), NAD Case No. 6065 (Mar. 16, 2017)

BP Corporation North America challenged various express and implied claims of superior performance made in advertisements by Shell Oil Company claiming that the additive package in its Shell V-Power NiTRO+ Premium brand gasoline better protects engines in which it is used. NAD recommended the discontinuance of Shell’s “best total engine protection” and related “unsurpassed” claims with respect to corrosion, wear and “gunk,” citing testing protocols that NAD found were insufficient for testing product superiority under consumer-relevant conditions, the substitution of head-to-head testing with testing against three competitors, and tests that posed statistical issues and were underpowered. With respect to consumer relevance, NAD was concerned that some of Shell’s laboratory test results did not “translate to meaningful real-world performance differences,” but noted that aspects of its advertising pertaining to deposit removal could continue if accompanied by disclosures that those claims were based on port injection engines. NAD also concluded that certain monadic claims pertaining to the functionality of Shell’s product “in all types of engines” were supported and could continue, particularly if “uncoupled from the broad ‘unsurpassed’ claims” and that, likewise, valve images could be used so long as gasoline test grade disclaimers were used to ensure they did not convey a broader message of superiority. Lastly, NAD recommended that Shell discontinue the use of a video that did not disclose a material connection between Shell and the video’s maker. Shell indicated it would appeal NAD’s decision in its entirety. View the press release.

NAD recommends dietary supplement maker modify, discontinue certain claims, modify third-party product review practices

Beauty Science Group, Inc. (Hair La Vie), NAD Case No. 6055 (Feb. 21, 2017)

Brock Beauty, Inc. challenged various claims pertaining to Beauty Science Group, Inc.’s Hair La Vie dietary supplements, including that the product “uses natural and safe ingredients” and “contains no fillers, harsh chemicals or artificial flavoring/coloring,” along with editorial content and claims on a third-party website. After the advertiser advised NAD that it would permanently discontinue a number of the claims, NAD first focused on testimonial and endorsement advertising on YouTube that continued to appear despite the advertiser’s indication that it would be permanently discontinued, recommending that it be discontinued because it lacked “any competent and reliable scientific evidence demonstrating that Hair La Vie grows thicker, stronger or fuller hair.” NAD criticized the advertiser’s reliance for hair growth claims tied to the product’s ingredients on testing that was done on nonrelevant populations and with ingredient quantities that did not match those in the actual product, recommending the claim be modified to state that biotin in the product promotes growth of existing hair. NAD also rejected the advertiser’s reliance on consumer survey data, citing among other reasons the advertiser’s failure to provide information to substantiate its methodology or controls, and the use of subjective questions to support objective attributes. NAD recommended discontinuance of the claim that “Hair La Vie uses natural and safe ingredients. This product contains no fillers, harsh chemicals or artificial flavoring/coloring,” citing the lack of affirmative supporting evidence and noting that reference alone to FDA daily values of individual ingredients cannot support a safety claim where a product “contains a proprietary blend of various ingredients in undisclosed doses.” NAD did note that its decision does not prevent claiming the absence of certain chemicals or artificial flavoring or coloring in the product. Finally, NAD recommended that the advertiser advise a third-party product review website against making unsupported claims about the product, including through testimonials, and clearly and conspicuously disclose its affiliate marketing relationship with the third party. View the press release.

NAD cautions advertiser in use of before-and-after photos, recommending discontinuance of claims not supported by underlying studies while finding other uses of photos permissibly ‘aspirational’

NeoStrata Company, Inc. (Exuviance® Retexturing Treatment and Body Tone Firming Concentrate), NAD Case No. 6061 (Mar. 8, 2017)

As part of its routine monitoring program, NAD examined express and implied claims for NeoStrata’s anti-aging products “Exuviance Body Tone Firming Concentrate” and “Exuviance Retexturing Treatment,” focusing on the advertiser’s use of certain before-and-after photographs depicting modest reduction in and improvement of “crepiness and laxity” alongside strong product performance claims. With respect to the first product, NAD assessed a 16-week independent clinical study that tested product performance on female subjects’ upper posterior thigh/buttocks and anterior thigh above the knees. NAD found the study appropriate in that it was long term and double blind, used objective and subjective assessments, and included appropriate inclusion and exclusion criteria, and also found that the photographs themselves were supported. But it concluded that the study results were not statistically significant in multiple respects and ultimately not consumer meaningful, including because measurable improvements were registered for the control rather than the test product and for parameters such as smoothness and hydration not referenced in the advertisement. With respect to the second product, NAD concluded that the advertiser could support claims turning on its ingredients’ known characteristics, but that deficiencies with respect to the study protocol warranted a recommendation that the claims be discontinued. Finally, NAD issued a split decision of sorts with respect to implied claims turning on claims connecting its product to youthfulness. It recommended discontinuance of a “Look Younger All Over” claim juxtaposed with the image of a young model because of its proximity, as well, to specific claims about the products (which, as described above, NAD concluded could not be substantiated), but concluded that the broader use of the before/after photo imagery in connection with supported claims — e.g., with respect to the product ingredients’ known characteristics — were permissibly “aspirational.” View the press release.