The motor oil wars have given us advertising lawyers much to ponder, including whether to use industry standard or proprietary testing. A recent decision from NAD is a very definitive statement against use of torture tests to support comparative claims.
In this case the ad itself showed the test – two cars, each on a dynamometer running at 75 miles per hour on an incline with a 1600 pound load. After 5 days one engine is shown failing, shooting sparks into the air while the other engine continues to run, claiming to be “driven stronger.” The challenger had issues with the methodology and statistical analysis of the testing but the primary beef was that the tests were conducted under extreme conditions not representative of conditions under which consumers would use the cars. The advertiser said it was very clear visually and via disclosures the extreme conditions used in the testing. NAD concluded that “an advertiser must demonstrate that even statistically significant product improvements or differences translate to consumer meaningful benefits. Torture tests can be used to support product claims but only if they represent conditions that have real world relevance.”
This portion of the decision is being appealed with the advertiser explaining “NAD has effectively found that no matter how well extreme testing conditions are disclosed, consumers will inevitably misunderstand and assume that the testing reflects conditions that they are likely to face in their daily lives. Advertisers have the right to advertise true, distinguishing features of their products even if those distinguishing features are present only in extreme conditions. Consumers can weigh for themselves whether the product attributes are desirable or meaningful to them.”
While it may be torture to wait for the NARB conclusions, we will tell you who crosses the finish line in this ongoing challenge.