United States: National Advertising Division (NAD) Update - August 9, 2016

SharkNinja Operating, LLC (Shark Rotator Powered Lift-Away and Shark Rocket Powerhead Vacuum Cleaners), NAD Case No. 5948 (Apr. 25, 2016)

NAD reviewed several claims made by Shark, including the claim that "Americans now choose Shark 2-to-1 over Dyson." Noting that "NAD has cautioned advertisers in prior decisions that total sales are not always synonymous with consumer preference," NAD found the consumer preference claim unsupported and recommended that the advertiser discontinue the claim. However, NAD observed that Shark could make a comparative claim based on unit sales (e.g., "Shark outsells Dyson 2-to-1"), provided that the claim is accurate and does not imply a head-to-head preference. In addition, NAD recommended that Shark modify a commercial depicting a head-to-head comparison demonstration by changing the references from "Dyson" to "Dyson Cinetic Big Ball" to prevent consumers from concluding that the demonstration applies to other Dyson vacuums. View the press release.

Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 12, 2016)

NAD reviewed claims that Atoxelene Skin Care Products "instantly reduce the visible signs of premature skin aging." NAD found that the claims "reasonably convey the [unsubstantiated] message that a single application [of the product] will result in a visible reduction in wrinkles and/or other signs of aging skin" and recommended that the claims be discontinued. Assessing claims substantiation, NAD noted that testing data on individual ingredients generally cannot support overall performance claims for the product, and also that laboratory testing (or in vitro testing) is unlikely to be sufficient to demonstrate the results that consumers can expect when using the product themselves. View the press release.

Applegate Insulation (Cellulose Insulation Products), NAD Case No. 5961 (June 3, 2016)

NAD reviewed certain claims made by Applegate Insulation stating that cellulose insulation provides superior energy savings over fiberglass insulation and thereby reduces consumers' heating and cooling bills. Applegate's advertising cited the results of several studies to support its claims. NAD found that the references to the studies in the comparative performance claims reasonably convey that consumers "will actually experience the same energy savings as reported in these studies" and recommended that the claims be discontinued. NAD also recommended that the advertiser discontinue unsupported claims that the fire retardants used in manufacturing its product are "non-toxic." However, the advertiser was not precluded from making "an appropriately qualified claim about the safety of its product." NAD also determined that the advertiser provided a reasonable basis for its "R-value-per-inch claims," (R-values are a measure of a material's resistance to heat flow) and found that the FTC's regulations on insulation manufacturers did not prohibit the advertiser from making R-value-per-inch claims. View the press release.

Verizon Communications, Inc. (FiOS), NAD Case No. 5886, NARB Case No. 209 (Apr. 11, 2016)

NARB reviewed an NAD decision finding that certain of Verizon's advertising communicated that FiOS internet speed and HD picture quality were superior to its competition's. The challenged claims included the following: "In customer satisfaction studies FiOS is rated #1 in Internet speed ... 8 years running," and "TV service rated number one in HD picture quality ... based on customer satisfaction studies ...." NARB found that in the television advertisements containing visuals touting the No. 1 ratings in internet speed and HD picture quality, reasonable consumers could conclude that the rating was based on a direct measurement or comparison. NARB therefore recommended "the challenged advertisement[s] be modified to more clearly communicate that the higher rating with respect to Internet speed" and "HD picture quality" represents "a customer satisfaction rating based on consumers' rating of their own Internet service providers." View the press release.

The Clorox Company (Glad Tall Kitchen Drawstring Bags), NAD Case No. 5951 (May 10, 2016)

NAD reviewed the claim that Glad Tall Kitchen Drawstring Bags provide "Antimicrobial Protection of the Drawstring from Odors." The challenger objected to the implied claim that the product protects against food-borne or disease-causing microbes. NAD found the challenger's consumer perception survey to be insufficiently reliable in its sample and methodology. Instead, NAD used its own expertise to evaluate the advertisement's message and concluded that, although the message is literally true, the design (including a prominent Clorox label) conveys a confusing message as to the product's specific antimicrobial protection and has the potential to convey an inaccurate message as to the nature of Clorox's partnership with the advertiser. NAD recommended that the packaging be modified to state that the product contains an antimicrobial agent to control drawstring odor. NAD also recommended that the font size be increased so as not to be "overshadowed by the presence of the Clorox logo." View the press release.

Joyus, Inc. (Dr. Brandt's Needles No More Wrinkle Relaxing Cream), NAD Case No. 5956 (May 19, 2016)

NAD reviewed a form of native advertising by an online shopping retailer for a product that appeared in "Stuff We Love" in People magazine's online edition. The section contained a list of videos; only once a reader clicks on a link does the video reveal elements indicating that it is a shopping video. NAD was concerned that consumers may interact with this content thinking that it was purely editorial. NAD recommended that the advertiser disclose that the page is a shopping page and that each "link itself or text surrounding the link should advise consumers that the content to which consumers are linking is an advertisement or make clear that the links are 'shopping' links." NAD also referenced the FTC's recently issued Enforcement Policy Statement on Deceptively Formatted Advertisements stating that "advertising should be identifiable as advertising to avoid misleading consumers into believing that an advertisement is independent and impartial." View the press release.

Sprint Corporation (Advertising by Sprint Corporation), NAD Case No. 5958 (May 20, 2016)

NAD reviewed broadcast, radio, internet and social media advertising containing pricing claims about Sprint's wireless service compared to the competition's. The advertiser voluntarily discontinued claims that switching to Sprint would "cut your bill in half," and NAD recommended that Sprint's comparative television commercials be discontinued because the "references to the limitations are blurred by the fast-moving audio and visual elements of the commercials which also make the supers, which refer to rate plans as well as limitations and restrictions, difficult to read, notice and understand." NAD also noted that sweeping rate comparisons may simply be too complex to explain in 15- to 30-second broadcast commercials. NAD found the advertiser's "50% off most T-Mobile rate plans" claim in print and internet advertising was reasonably substantiated but should "clearly and conspicuously state the basis of its comparison." Additionally, the disclosure should include both "the $36-per-line activation fee" and "the material differences in its plans versus" its competitors' plans. View the press release.

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