Category Archives: Claim Substantiation

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Ad Agency Liability Lives: The FTC Holds Ad Agency Liable for Deceptive Advertising

A recent settlement over deceptive advertising with the FTC may have advertising agency executives and their attorneys asking the same question as the bystander in the challenged advertisement: “Oh man, no way. Are you kidding?” For years advertising agencies have seemed to fly blissfully under the FTC’s radar, but the FTC’s settlement with Nissan North … Continue Reading

Food (and Dietary Supplement) Fight at the FTC

In a town not particularly well-known for its nonpartisanship or collegiality, we have always thought the FTC stood (and stands) out for its remarkable ability to typically operate in a consensus-like manner.  However, a clear split appears to be emerging at the Commission over the application of the “competent and reliable” scientific evidence standard. It’s … Continue Reading

Claim Study Series 2: Clinical Tests Must Show Statistically Significant Results Compared to Control

It’s not new news that to support weight loss or other health claims the FTC is requiring substantiation in the form of at least one (sometimes two) RTCs or randomized, controlled human clinical trials.  The NAD recently clarified that not only must your clinical test show results but the results must differ from the control … Continue Reading

Claim Study Series 1: Survey Says Questions Must Match Claim

NAD’s recent case involving Dermstore’s SmartLash Eyelash Enhancer has some good lessons for ‎companies conducting performance studies based on consumer use and perceptions. When designing the study, it is critical to make sure the questions asked link to the claim you want to make. Here participants were asked “please rate how satisfied you are with … Continue Reading

Using Employee Testing to Substantiate Claims is a Little Nutty Per NAD

NAD recently issued a decision in another monitoring case. (This seems like a really robust season for NAD’s own challenges — we have blogged about other recent monitoring cases here, here, and here.). ‎ The focus this time was on reduced calorie, weight loss and healthy claims.  The products at issue were made by Walden … Continue Reading

NAD Product Demonstration Finding Not So Pretty for Advertiser

NAD has now brought another monitoring case against an advertiser of mascara showing spokesmodel starlets with lashes that were plumped or lengthened with something other than the advertised product. The prior cases involved post-production retouching and the newest case against L’Oreal involves adding some eyelash inserts to the models in two different ads. The express … Continue Reading

Can You Hear Me Now? NAD Calls on Mobile Phone Marketer to Clarify Comparative Claims

The cell phone wars should ensure the continuing viability of NAD and Lanham Act courts for all time. As noted in a recent challenge by AT&T to T-Mobile advertising, this is an industry that is rapidly innovating and highly competitive, and characterized by direct comparative claims.  ‎Staying on the right side of the line, as … Continue Reading

NAD Keeps It Regular with Whole Grain and Fiber Claims Review

A recent NAD decision once again illustrates how the NAD is often at the forefront of opining on many currently trending claims.  The holy grail for any pasta loving carb avoider ‎is a great tasting but healthier spaghetti. And as companies increase their whole grains and overall nutritional profile, comparative claims and challenges are sure … Continue Reading

How to Keep Cool with all of the Confusing Cases with ‘Up To’ Claims?

In a recent NAD case Honeywell International, Inc. challenged claims made by Nest Labs, Inc. for its Nest Programmable Thermostats in print and internet advertising. Honeywell challenged several performance-related “up to” claims (claims that convey performance-capacity/energy-savings “up to” a certain percentage point). Rather than run through each claim in the 30+ page decision and the … Continue Reading

Disclosure in #1 Tinted Moisturizer NAD Case Not the Right Match

The NAD has a history of closely scrutinizing advertisements that include #1 claims to ensure consumers are receiving complete and accurate information.  #1 claims under NAD’s view are not puffs but convey the message that a product is the bestselling brand in the United States, unless other appropriately qualifying information is provided. Typically, when an … Continue Reading

Can We Get a Mulligan?

Dueling Driver Campaigns Missing the Fairway with the NAD: Thoughts on How to Avoid the Sand-Traps Going Forward Their drivers consistently face-off on the green. Now two of golf’s leading names in equipment have gone head-to-head on a different course: the fairways of the NAD, with Taylor Made and Callaway filing competing challenges with the … Continue Reading

The One That Got Away: FTC Provides Little Guidance on Sustainable Seafood Label

When the FTC released its revised Green Guides last October, the Agency provided detailed guidance on a number of topics but declined to provide guidance on the claim of “sustainability.”  In doing so, the Commission noted that its job is not to define terms but rather to help advertisers avoid making claims in a manner … Continue Reading

NAD Driven to Wreck Comparative Claims, Although Monadic Claims Are Covered

When making comparative claims to an unnamed generic competitor, even with humor, NAD will require you to substantiate your superiority as to all major competitors.  Some advertisers feel naming a specific competitor is riskier and they will more likely be challenged if they call out a particular brand but the substantiation burden may be higher … Continue Reading

A Clean Bill of Substantiation Health: Doctor Recommended and Doctor Formulated Claims

In a recent NAD case involving a nail polish that claimed to be a proven topical antifungal, NAD examined claims that products are either recommended or formulated by physicians. daniPro Nail Polish was invented and recommended by its founder, a podiatrist and foot surgeon.  NAD reiterated its longstanding position that “doctor recommended” claims are very … Continue Reading