In a recent NAD case involving a nail polish that claimed to be a proven topical antifungal, NAD examined claims that products are either recommended or formulated by physicians.
daniPro Nail Polish was invented and recommended by its founder, a podiatrist and foot surgeon. NAD reiterated its longstanding position that “doctor recommended” claims are very powerful and persuasive to consumers. As such they must be supported by well-conducted survey evidence showing that a substantial portion of relevant doctors selected at random recommend the product in their ordinary practice. A doctor recommending a product, even if truthful, is not sufficient to back up such a claim. Doctors who sell the product are also not sufficient to substantiate the claim as these doctors do not represent a random sample. NAD did permit the advertiser to continue its claim that the product was “doctor formulated,” rejecting the challenger’s claim that this would be confusing to consumers as being the same as a “doctor recommended” claim.
The advertiser also needed to discontinue claims that its product was a proven topical antifungal. It did contain undecylenic acid, which is a known antifungal but for skin not for nails. The NAD concluded that reasonable consumers would assume a nail polish promising antifungal benefits would apply to nails, particularly when coupled with other claims that it would “keep” nails healthy. The NAD did provide daniPro with the flexibility to call out the inclusion of this ingredient but only with a disclaimer that it did NOT prevent or treat fungus of the nails. We do not want to dwell on these antifungal issues excessively as it is a bummer for one of the authors who always looks forward to her next discount mani/pedi with great excitement. But this is a bit like corrective advertising within an ad. We can’t help but wonder if the same ends could be accomplished with a clear affirmative statement that the ingredient was known as a skin antifungal rather than requiring the call out as to how it did not work.
NAD also stuck to its prior position on natural claims and recommended daniPro cease calling its product natural. While the product was free of certain chemicals such as formaldehyde and its undecylenic acid is a fatty acid found naturally in the body, NAD found it had to undergo significant processing before being added to the product. So regardless of the original source of the ingredient, if there is significant chemical alteration, the product cannot be called natural per the NAD.