NAD’s recent case involving Dermstore’s SmartLash Eyelash Enhancer has some good lessons for companies conducting performance studies based on consumer use and perceptions. When designing the study, it is critical to make sure the questions asked link to the claim you want to make. Here participants were asked “please rate how satisfied you are with the fullness and length of your eyelashes” and the advertiser determined 68% were satisfied. But NAD concluded that this subjective measurement was not related to the claim of “up to a 68% increase in the appearance of lash length.” In this case, NAD also had some concerns about the reliability of the study because it was not clear if the study was blinded (e.g., that the testers and participants were not told of the brand being tested) and not clear if the participants were instructed to use the product consistent with the use instructions on the package. But at the end of the day, even if the study was flawless, the results did not support the claim being made. This counsels toward having the marketers, product testers and the legal team coordinating at the very beginning at the study design phase to avoid such disconnects down the road.
For those still tracking “up to” developments (which we have blogged about on the FTC and NAD front here, here, and here NAD confirmed its standard that to support an “up to” claim in the product performance context the claim “must be supported with evidence that an ‘appreciable number’ of consumers can achieve the maximum results referenced in the claim.”
NAD also in this case reiterated its longstanding rule that a “doctor recommended” claim cannot be based on anecdotal support but must be based on results of a physician survey regarding what doctors recommend in the ordinary course in their practice. The rationale for this is NAD’s belief that consumers put a lot of stock into such claims and so the support must be robust.
We will be bringing you some other thoughts from recent cases on sound study design in near future posts.