National Advertising Division (NAD) Update, Vo.1, No.2

Bausch & Lomb Inc. (ULTRA Contact Lenses With MoistureSeal Technology), NAD Case No. 5944 (Apr. 4, 2016)

NAD recommended that Bausch & Lomb (B&L) discontinue its professional claims that ULTRA lenses have “significantly more” wetting agent (known as PVP) than do the competitor’s ACUVUE OASYS lenses. NAD found the scientific method used to quantify the level of PVP in B&L’s lenses insufficiently reliable. NAD also recommended that B&L discontinue its claim that ULTRA lenses have “best-in-class properties for best-in-class performance,” finding that it conveys a message that B&L’s lenses objectively perform better than other lenses and that the “advertiser’s subjective preference evidence was insufficient to support ... [this] objective comparative performance” claim. NAD further recommended that B&L discontinue related “BETTER COMFORT” and “BETTER VISION” claims that were based on a lens “refit” study that NAD determined was “materially flawed” and “insufficiently reliable to support the advertiser’s comparative preference claims.” Kramer Levin successfully represented the challenger, Johnson & Johnson Vision Care Inc. View the decision.

LEI Elecs. (Eco Alkaline Batteries), NAD Case No. 5927 (Feb. 5, 2016)   

NAD evaluated a challenge to environmental claims about “Eco Alkaline” batteries — specifically, that the batteries and packaging were recyclable. NAD recommended discontinuance of claims about the recyclability of the batteries, given the absence of evidence that most consumers would have access to recycling facilities for batteries. NAD also recommended that the advertiser discontinue its unsupported claims of degradability, nontoxicity, carbon neutrality, general environmental benefits, comparative environmental benefits and comparative performance. NAD referred certain of the challenged claims to the FTC for further review, following the advertiser’s assertion that it would not comply with NAD recommendations.  View the decision.

Rust-Oleum Corp. (Painter’s Touch Ultra Cover 2X Spray Paint), NAD Case No. 5934 (Feb. 23, 2016)   

NAD recommended that Rust-Oleum Corp. discontinue claims that state or suggest its “Painter’s Touch Ultra Cover 2X Spray Paint” provides twice as much coverage as competing spray paint products and recommended the company change the product name. The product packaging featured a prominent “2X” adjacent to a gold seal and the statement “made with double cover technology.” NAD concluded that the “Ultra Cover 2X” product name is an express performance claim because “2X” follows directly the claim “Cover.” NAD further determined that the product name, product packaging, product brochure, and Internet and broadcast advertisements reasonably conveyed the unsubstantiated message that Painter’s Touch Ultra Cover 2X spray paints deliver twice the coverage of competing brands. Rust-Oleum is appealing. View the decision.

Comcast Cable Commc’ns (Xfinity Cable Television Serv.), LLC, NAD Case No. 5926 (Feb. 5, 2016)     

In this challenge by DirecTV, NAD looked at broadcast spots comparing Xfinity to DirecTV, including ads conveying the message that DirecTV’s performance is affected by bad weather but that “Xfinity delivers reliable entertainment — rain or shine.” Although NAD approved some spots, it determined that one ad conveyed a broader message that the challenger’s satellite television service does not function during any wet weather, and it recommended that the ad be discontinued for lack of support. NAD determined that the claim “best-in-class support” was an unsupported objective performance claim and recommended that it be discontinued. NAD allowed Comcast to continue ads describing its policy regarding its customer service visit time windows as a “guarantee,” but it recommended that the advertiser disclose the material terms of the guarantee in direct proximity to the claim and not via hyperlink.  View the decision. 
Gen. Mills, Inc. (Progresso Soup), NAD Case No. 5940 (Mar. 23, 2016)

Each of the television spots at issue in this challenge opens with the text “VINELAND, NJ” displayed on the screen against a background of growing crops, and underneath this is written “HOME OF PROGRESSO.” According to the challenger, the home of Progresso is not Vineland but rather Minneapolis, where the brand’s owner, General Mills, is headquartered. NAD found, however, that the advertiser provided a reasonable basis to claim that Vineland is the home of Progresso. That said, NAD found that the ads could be misleading to the extent that they suggested that the soups are made in Vineland using local ingredients. View the decision.

SharkNinja (Shark Rocket DeluxePro), NAD Case No. 5929 (Feb. 11, 2016)

The vacuum maker Dyson challenged claims made in an infomercial for the Shark Rocket DeluxePro, including two product demonstrations depicting consumers vacuuming their carpets with competitors’ products and then vacuuming the same carpet with a Shark Rocket, only to find debris that the competitors’ vacuums had left behind. NAD determined that these sequential-vacuuming ads conveyed an unsupported message that the Shark vacuum cleans better than the others. NAD also looked at testimonials in an infomercial for which Shark had provided its products for free, and it recommended that Shark disclose the connection between product reviewers and the product. View the decision.