United States: Humor And A Heartthrob Cannot Save The Day At NAD In False Disparagement Case

Last Updated: October 7 2015
Article by Amy R. Mudge and Randal M. Shaheen

In contrast to the Dollar Shave case we wrote about recently, NAD and NARB recently gave us an example of a case they found to be falsely disparaging, notwithstanding the humor and hyperbole throughout.

Everyone can agree that the DirecTV Rob Lowe ads (and their new series with Tony Romo) are hilarious.

Rob Lowe is in all of his glory as a DirecTV subscriber. While an alternate reality version of Rob Lowe (e.g., creepy, painfully awkward, far less attractive, meathead, and scrawny arms) is a cable subscriber.

The ads would contrast the experiences of the star and the alter ego with their television service. To the extent benefits were discussed, DirecTV asserted the benefits were monadic not comparative claims. The contrasting experiences of the lesser Rob Lowe were funny and not experiences any reasonable consumer would appreciate as real comparisons.

By way of example, in the Creepy Rob Lowe ad, real Rob says "DirecTV has 99% signal reliability.  Creepy Rob Lowe says "My cable's out, so I'm down at the rec center watching folks swim." The ads end with "Get rid of cable and upgrade to DirecTV."  NAD found that the ads did convey a comparative superiority message of signal reliability. DirecTV appealed and NARB agreed.  Both found that the tagline reinforced a comparative message.  DirecTV provided support for the claim that it had 99% signal reliability but no evidence as to the comparative signal reliability of cable.

It is not often that NAD finds humorous messages fail to convey comparative messages, whether intended or not. One in our memory is the Priceline case where NAD said when William Shatner as the spy Negotiator said "you've been double crossed by other travel sites" that this was puffery and would not be understood that competitors cheated their customers. The decision noted a key basis for the decision was that the ad in substance was not focused on reliability of travel sites and the "double cross" reference was peripheral at best in an ad focused instead on ease of bidding.

NARB disagreed with NAD in some critical aspects of the DirecTV case.  DirecTV claimed it was rated #1 in customer satisfaction over all cable providers. An ACSI survey formed the basis of the claim, and the survey's reliability was not in dispute. In the survey, DirecTV tied for first place with another fiber optics provider. NAD said they needed to disclose this fact, notwithstanding the express limitation in the claim comparing it to Cable. NARB disagreed. Further, NAD said the claim had to be clarified to make clear the survey was based on consumer satisfaction with their own providers. NARB again disagreed, essentially questioning how there could be any other reasonable interpretation.  Both NAD and NARB agreed that the fact that the claim was based on ACSI should have been more clear and conspicuous. It is hard to understand this finding in an era where the FTC is discouraging advertisers from streamlining disclosures and weeding out unnecessary information.  It is hard to see how consumers need to know ACSI formed the basis of the claim in order to fully understand it.

What's the bottom line? It appears NARB is going to take a similar hard line about disparaging humor and generally will be unamused. That said, if a claim is straightforward and clear on its face like the customer satisfaction claim, NARB may be less likely than NAD to see implied claims or require heightened explanations. ?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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