United States: Getting Claim Substantiation Right

Last Updated: October 8 2015
Article by Christopher S. Crook

More, almost live blogging, from the NAD conference.  During the mid-morning hours yesterday, the conference group focused on strategies to get their claim substantiation right.  The panel of Kat Dunnigan (NAD); Rebecca Bliebaum (Tragon Corporation); Jay Goldring (Boots Retail USA, Inc); Spring C. Potoczak (Novartis Consumer Health, Inc.); and moderated by David Mallen (Loeb & Loeb, LLP) focused on the sufficiency of different types of claim substantiation.

The panel started the conversation by discussing how much substantiation is needed for a given claim.  In other words, what constitutes competent and reliable scientific evidence.  The panel said that randomized controlled trials (RCT) are generally thought of as the gold standard of support for advertising claims.  However, the panel noted that RCTs are not required in all cases.  In fact, David Mallen noted that the DC Circuit has said that RCTs are not necessarily the standard for advertising claim support.  The NAD confirmed that it does not require any one type of test, reiterating that its standards for claim substantiation are flexible.  RCTs are certainly accepted at NAD, but are not required.  The NAD's focus is on whether the advertiser's support is sufficient and reliable.  The NAD encouraged advertisers to simply provide the best evidence supporting the advertising claim, whether that evidence is a RCT or not.

The NAD did caution that advertisers should not rely on an RCT that does not fit the claim made, simply because the test is an RCT.  In all cases, the support offered to the NAD must support the claim actually made.  The NAD said that it has seen a number of cases where advertisers will rely on scientific evidence already in the field (generally about the ingredients of a product) but that they do not actually test the claim made by the advertiser.  While this type of testing is certainly acceptable, it must closely relate to the advertising claim made.  The NAD has also seen RCTs that, while they do use the product, failed to use proper methods and controls to effectively test the claim made.  Again, just because and RCT is offered to the NAD, does not mean the claim will be defacto substantiated.

The panel then discussed different types of advertising claims and strategies for substantiating the same.  Specifically, the focus of the conversation was how to identify subjective claims as compared to objective claims and then how to substantiate the same. The panel discussed different types of studies including surveys, panel studies, industry standard studies and other custom studies used to substantiate advertising claims.  The panel agreed that there is no magic formula for substantiating subjective or object claims.  The panel agreed that the type of study used to substantiate an advertising claim really boils down to the actual claim made.  Careful consideration must be given to the specific language in the claim.  Rebecca Bliebaum, who formerly worked for ASTM—the organization that creates industry standard testing—gave an example that a "looks cleaner" claim should be tested differently than a "cleans better" claim.  The former being a subjective claim where consumer perception is relevant and the latter an objective claim where an industry standard test may be appropriate.  Jay Goldring noted that recent decisions by NAD and NARB allow some flexibility with study designs.  Though it is a safe bet that definitive objective numbers will be scrutinized very closely and will usually be required to be substantiated with some sort of scientific evidence (non-self assessment).

With regards to subjective claims, Rebecca Bliebaum would like to see consumer panels used more for claim substantiation.  She explained that consumer panels, if done correctly, give you statistically reliable, repeatable insight into the mind of the consumer as they use the advertiser's product.  Consumer panels also tend to be much less expensive than full blown surveys which may require an advertiser to test hundreds of consumers in two locations in America's four geographic regions.  Rebecca Bliebaum recommends using about 10-12 panelists per panel.  She also stated that careful attention should be paid to who is on the panel, how panelists are selected, and how they are trained.

NAD agreed that panels can be useful and confirmed that NAD is "not necessarily skeptical" of panels.  The NAD has seen panel testing in order removal claims and has allowed advertisers to make claims based on panel evidence in the past.

When using panels or larger surveys, advertisers should still concentrate on being focused on the claim that is actually being made.  The panel provided an example where an advertiser selling Fruity Dino Bites conducted a large nationwide survey measuring whether consumers prefer the taste of Fruity Dino bites compared to Fruity Pebbles.  Despite being a robust survey, there were fundamental flaws that rendered the survey unreliable.  For example, the survey measured the taste preference of consumers aged 30-65 and not the target market for the cereals (children).  The survey also failed to measure two locations within each geographic region in the U.S.

The panel then closed with a list of best practices for claim substantiation:

  • Tell the story of your evidence;
  • Where does your evidence fit within a larger body of evidence;
  • Distinguish between market research and claim substantiation;
  • Justify your testing choices;
  • Take advantage of the meeting with NAD to explain science.

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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