There is lore that the beauty industry does not challenge itself sufficiently before NAD, and for this reason NAD brings more monitoring challenges in this area. After the recent decision in a case brought by Unilever, we would not be surprised if we see more competitor challenges in this area. And advertisers on the receiving end of these challenges might not find them cruelty free.

OGX makes shampoos, conditioners and related hair care products with a variety of what NAD termed “exotic” ingredients:  lines with argan oil from Morocco, coconut water, ‎keratin oil, biotin, cherry blossom ginsing, etc. Unilever said the product names were listed next to product benefits in a way that implied the benefit was due to the exotic ingredients. Unilever alleged the exotic ingredients were present at levels that would not deliver these benefits. OGX and its maker Vogue International did not provide evidence of what the exotic ingredients did. Instead, they said that the benefits were due to the formulas as a whole, that shampoo and conditioner clean hair generally, which make hair soft, fuller, etc. It voluntarily committed to redoing its packaging to separate the product benefits in the romance copy from the product name.

Not sufficient for NAD, which recommended a massive product line name change.   Unilever submitted evidence of consumer confusion with original and revised packaging. NAD rejected the survey as not reliable for a variety of reasons. Nonetheless, NAD concluded that without evidence that the exotic ingredients provided benefits, the names of the products needed to be changed. Specifically “when a product name makes an express claim which conveys a message that is not supported, extrinsic evidence of consumer confusion is not required to recommend a product name change.”   There is precedent for this idea, but it is very rarely used.   Another recent example was Arm & Hammer Ultra Power 4X Concentrated detergent. NAD concluded that the exotic ingredients could be included in the product names in a different way.  NAD was specific in its view of the right fix – changing from Nourishing Coconut Milk Shampoo to Nourishing Shampoo with Coconut Milk.  This conclusion likely has ramifications for a wide variety of product categories.

NAD also looked at a claim that a product was free of SLE and SLES, two types of sulfates, when it contained ammonium lauryl sulfate. Citing the Green Guides, NAD concluded OGX should not call out a product was “free of” an ingredient if it contained a similar ingredient with the same properties. OGX objected that it did not make any environmental claims and simply noted a truthful ingredient claim such that the Green Guides should not apply. NAD found the free of claim was targeted to consumers who care about the ingredients in the products they buy for a variety of reasons, one of which may well be the effect on the environment of sulfates in cleaners. NAD recommended discontinuing this claim as well.

Time will tell if this clean sweep decision for Unilever brightens and lightens the cosmetic industry’s views of the potential benefits of the NAD process and results in an increase in beauty competitive challenges. In the meantime, advertisers should take a fresh look at whether they are implying ingredients, rather than overall products, provide benefits and whether any such implied claims can be supported.