AirRamIn today’s global marketplace, it is common to expand the marketing footprint of successful consumer products from one geographic market to multiple.  In doing so, it is tempting to leverage economies of scale regarding the substantiation for any advertising claims associated with the consumer product.  However, when moving a successful international product into the United States market, special care should be taken to ensure that the substantiation relied upon is relevant to U.S. consumers, as the recent NAD decision in GTech instructs.

GTech manufactures and markets the AirRAM cordless vacuum cleaner.  The AirRAM is a very popular vacuum cleaner in the U.K. which touts performance that is equal to that of a corded upright vacuum cleaner.  GTech sought similar success in the U.S., recently introducing its AirRAM vacuum into the U.S. market.  However, GTech’s marketing claims were challenged within the U.S. by Dyson at the NAD.

Among other marketing claims, GTech claimed that its AirRAM cordless vacuum performed as well as a corded upright vacuum.  However, to substantiate its claim, GTech relied upon the substantiation it developed for the European market.  Specifically, GTech’s substantiation was based upon vacuums that are offered for sale in Europe tested according to a European test protocol (IEC 60312).

Interestingly, Dyson (whose parent company is based in the U.K.) argued that the IEC 60312 test protocol did not apply to American homes—heavily relying on one of its prior cases before the NAD where Dyson had argued the opposite.  Consistent with its prior case law (Hoover Case # 4467) the NAD again held in GTech that IEC 60312 was not relevant to American consumers because the testing protocol does not test flooring types commonly found in American homes.  Moreover, GTech was criticized by NAD for failing to provide any evidence showing that the surfaces tested by the IEC protocol are relevant to American consumers.

NAD also criticized GTech for failing to provide support that the vacuums it tested are relevant to American consumers.  Absent this evidence, the NAD found that the GTech’s testing of competing vacuums sold in the U.K. was not relevant for an American advertising claim.

The NAD stated that “NAD precedent makes clear that products must be tested against conditions found in the U.S. as well as products offered for sale in the U.S. market.”  The NAD also reaffirmed its prior holding that, when making broad parity claims, the claimed product must be tested against 85% of the market.

Therefore, if your company is thinking about launching an already successful product in the U.S., you would be wise to analyze any advertising claim substantiation with an eye toward U.S. consumers.  It may end up that the substantiation does not fit the advertising claim once inside the U.S. market.