When we think of superiority claims in advertising, we usually think of NAD or Lanham Act challenges. When we think of brake pads, we usually think of Callaghan Auto Parts. Last week, however, the FTC resolved an investigation regarding superiority claims for brake pads with Federal-Mogul Motorparts LLC (Federal-Mogul), a manufacturer and seller of after-market automotive parts. According to the FTC, Federal-Mogul violated Section 5(a) of the FTC Act by disseminating a series of false and unsubstantiated advertisements concerning its Wagner OEX brake pads. Specifically, Federal-Mogul claimed that (1) in an emergency Wagner OEX brake pads will stop a pickup truck, SUV, or crossover up to 50 feet sooner than competing brake pads; and (2) Wagner OEX brake pads would significantly reduce the risk of collisions compared with competing brake pads.
To support its claims, Federal-Mogul hired an independent party to conduct head-to-head testing of Wagner OEX brake pads with competing brands. The industry standard evaluation of the stopping distance performance of a vehicle requires that the driver try to stop the vehicle in the shortest distance achievable, causing the driver to push on the pedal as hard as necessary to achieve the shortest stopping distance. But Federal-Mogul’s test only required that a driver apply constant and relatively light force to the brakes to stop the vehicle. Further, Federal-Mogul tested the brakes in a heated state, which reduces the brakes’ effectiveness. The FTC alleged that this testing was insufficient to support Federal Mogul’s claims of how its brakes would perform under real-world emergency conditions.
The proposed settlement prohibits Federal-Mogul from making any further statement concerning the efficiency and performance of its brakes without support from competent and reliable scientific evidence. This settlement highlights the level of rigor the FTC expects for the substantiation of superiority claims. In fact, Andrew Smith, director of the FTC’s Bureau of Consumer Protection, explained that the FTC “did not challenge the brake pads as unsafe. Rather, we challenged the manufacturer for making very specific performance claims without the science to back those claims up, and that’s deceptive and illegal.” As Tommy Callaghan would say, “Holy schnikes!”