NAD’s procedural rules say “complaints regarding specific language in an advertisement, or on product packaging or labels, when that language is mandated or expressly approved by federal law or regulation . . . are not within NAD/CARU’s mandate.” So did your regulatory agency approve your packaging? And so you think you are off the hook for a competitor challenge? Think again. The NAD recently clarified that it will only pass on a case if the language at issue is required by law or approved for use by all industry participants.
In this particular case, claims by a flea and tick product were challenged by a competitor. The EPA reviewed a study supporting and approved use of the claim “starts killing fleas and ticks in 15 minutes.” The test involved applying the product, waiting a week and introducing the critters on a dog. The introduced fleas began to perish within a quarter hour. NAD found, however, that this claim used in ads implied that if you applied this product to a dog already infested that the fleas would begin to perish within 15 minutes. They found this message imparted in part due to the visuals in the ads showing an animation of the product being applied and fleas and ticks immediately dying. (NAD for some reason has a real dislike of flea killing animation generally, previously recommending discontinuing an ad showing toy soldiers attacking fleas on a dog). There were a lot of direct comparative performance claims to the Challenger’s products as well, something NAD also takes very seriously.
In any event, in many cases NAD will reiterate that it makes every effort to “harmonize” its decision with regulatory guidance. Here NAD said “deference to regulatory authority is not automatic and it never completely replaces the obligation of the self-regulatory system to exercise its own sound discretion.” The NAD said it might defer to a different determination of agency staff if the specific claim at issue was considered, the challenger had an opportunity to participate in an agency proceeding and when the agency issues a decision explaining its decision. (How often that happens is a question for another day). NAD further said there is no duplication or inconsistency as “EPA’s focus and expertise center on representations regarding safety and efficacy, while NAD’s mandate and expertise are different, directed at all of the messages reasonably conveyed by an advertisement.”
So getting your particular regulators on your side, while important for its own reasons, is not going to give you a safe harbor from an advertising challenge.