An adverse NAD decision recommending that a claim be modified or even permanently discontinued is really the beginning not the end for marketers and their lawyers. Those simple little words “the Advertiser is disappointed in and disagrees with the NAD’s decision but in the spirit of self-regulation will take the recommendations into account in future advertising” may well be one of the best examples of easier said than done.
Last month, the NAD referred a razor company to the FTC after a second compliance challenge. Schick’s ads for its Hydro razors featured “water burst imagery” for example a frisbee exploding into water when a man catches it. The NAD found that while it was substantiated that the razor and its water-activated gel hydrates skin during shaving, the images conveyed an unsupported claim that the razor provided ongoing post-shaving hydration. (The issue apparently was the context — that the water bursting happened nowhere near a razor or a bathroom so perhaps an exploding towel or shaving cream can or bathroom pipes would have been ok, well at least from a legal perspective if not a marketing lens.) There was no consumer perception evidence in the record. NAD “stepped into the shoes of a reasonable consumer” and determined a promise of continued hydration after shaving was one possible takeaway message. Schick did a few things after the decision. It changed the claim from “hydrates your skin as you shave” to hydrates your skin throughout each shave” in a super. And they conducted consumer perception evidence showing consumers took away no claim from these images.
NAD did not accept the evidence and said it has made its conclusions. Further, a use of the super would have contradicted the message (that the survey evidence showed did not exist). NAD expressed disappointment in the lack of compliance and referred the matter to the FTC. This is a very interesting situation and one that could prompt a lot of debate. On the one hand, if the survey was well conducted and robust and showed NAD got it wrong (which can happen, even among advertising experts) shouldn’t that be sufficient to allow similar claims (here on a next generation product, not the specific product at issue in the challenge)? On the other hand, accepting new evidence after rendering a decision could invite real gamesmanship in the self-regulatory process — incenting companies not to test consumer understanding of claims during an NAD challenge but to do so only after the fact if there is an adverse decision. And it could turn compliance reviews into repeat challenges. Probably not issues we are going to resolve neatly in this blog.
So what is an advertiser to do? In the face of an adverse decision, an appeal of course is always an option if you believe the NAD just got it wrong and the claims at issue are really core to the brand and the product. Running the same claims with new support is a risky proposition as the Schick
referral indicates. If you can find room to modify the claim to take into account the NAD’s concerns, it is a best practice to do this not in a disclaimer but amending or clarifying the claim itself. And at the end of the day, an FTC referral by NAD does not guarantee a full blown investigation because while the FTC takes NAD referrals seriously, it has something the NAD lacks – enforcement discretion to decide what cases to bring.