We just read one of our favorite NAD decisions ever. And it just so happened to involve one of our favorite recent ad campaigns. We have blogged before about Dollar Shave Club, as a vehicle to talk about Restore Online Shopper’s Confidence Act (“ROSCA”) and a reminder of the legal issues with negative option plans. But we really just wanted to share the web ads because they are hilarious. If you have not seen them, stop reading this blog (yes, you read that right) and have a look.
And even if you have seen it before, you need to refresh your memory to put the NAD’s holding in context. (We promise we are in no way affiliated with the Dollar Shave people and get no pay-per-click revenues. We would like to have a beer with these guys, however.).
You’re back? In what is probably NAD’s finest hour, NAD held calling a product “‘f***ing great’ is merely puffery.” Your marketing people are going to love that one even if corporate affairs probably will not.
(As an aside, back in the day before the FTC’s Comparative Advertising Policy Statement, when the network’s banned comparative advertising, razor companies got around this by bleeping out competitor names. Here’s an example.
(We’ve come a long way baby.)
We could just end the blog here. But since you went all the way to YouTube and back, we will forge ahead. (After noting we did a diligent search and believe this is the first time the “f” bomb, albeit in PG form, has appeared in a NAD decision. And the first time it appears in our blog!)
This case is another installment in the age old question of where the line is drawn between acceptable humor/puffery and false disparagement. We have blogged on this before and readers know that humor is no automatic defense if there is an express or implied false denigration claim. (in other words “come on it’s funny” should typically not be your sole defense.). Here, however, NAD found the ads were just funny and would not give a false message that the Dollar Shave razors are equal to the more expensive drug store razors.
One ad asks whether one “likes spending $20 a month on brand name razors, 19 of which go to Roger Federer” and whether one needs features like “a vibrating handle, a flashlight, a back scratcher and 10 blades” when “your handsome-ass grandfather had 1 blade and polio” and tells customers to “stop paying for shave tech you don’t need.”
NAD found all of this harmless puffery. NAD tried to draw the line by looking at whether the superlative is used in a way that suggests it is better “in some recognizable or measurable way”. This seems like a very hard line to draw, including here where the ads talked about price and features of razors. NAD found in a very detailed way that the ads discussed the price difference, were clear the Dollar Shave razors did not have all of the benefits of pricier razors, but questioned whether men need these added bells and whistles to get a good shave. And in a part of the decision perhaps more interesting than the “f” word part, NAD looked at the intended audience of the ad in reaching the conclusion that reasonable consumers would not be confused. “Notably, the comedic action and irreverent tone of DSC’s video mirrors the sensibility of a generation for whom the affordability of a ‘value’ brand is particularly appealing and consumer relevant. Such consumers will understand that the advertisement is not denigrating the advanced shaving technology offered by competitor products, but humorously questions whether such features are required or necessary for an effective shave.” Dollar Shave discontinued statements that competitors offered “gimmicks” or “shenanigans.”
Finally, perhaps branching into even more novel territory, NAD appreciates that Dollar Shave was planning to more clearly disclose the shipping charges for its entry level razor package so as not to convey an unintended promise that it had any subscriptions that were only $1 month. So while Dollar-a-Day Rent-a-car did not pass muster, Dollar Shave Club does, as long as the charges above a dollar are clear and conspicuous. And NAD also noted “the advertiser is responsible for updating all of its advertising, including advertising which appears on Pinterest, to the extent that such content is within DSC’s control.”
But in the end, in deciding whether the primary claim was just puffery, NAD decided, f***ing yea.