Not a sexy product category, but NAD's new decision involving anti-fungal products for athlete's foot treatment is well worth a read if you're making #1 Recommended claims.
This case involved a #1 Pharmacist Recommended claim made by Arcadia Consumer Healthcare for its Fungi-Nail brand of products. The claim was challenged by Advantice Health, maker of competitive fungal nail products. At issue was whether the survey of pharmacists relied upon by the advertiser for its claim provided adequate substantiation for this significant claim. As NAD noted, "[p]harmacist recommended claims carry a great deal of weight with consumers. Consumers trust that pharmacists' recommendations are unbiased and based on reliable and accurate information."
By way of background, NAD noted that "it is well-established that pharmacist recommended claims require a well-conducted, random, statistically significant survey of pharmacists showing that a substantial percentage of pharmacists recommend the product. Moreover, the pharmacists' conclusions should be based on their experience and what they actually recommend in their daily practice." Further, to support such a claim within a broad product category, an advertiser should compare itself to at least 85% of the relevant marketplace.
Here, NAD determined that the advertiser's survey was neither reliable nor representative and, thus, was inadequate to support its "#1 Pharmacist Recommended" claim. Although the survey was appropriately designed to include the right survey population, geographic diversity, and to glean what products the pharmacists actually recommend in their practice, it did not include the right products, i.e., those products that were representative of the entire OTC antifungal marketplace. Indeed, the survey did not include any of the leading products in the category.
Although the advertiser argued that its omission of the leading products was appropriate because, it claimed, its own product is a "specialty product" in a different category from the leading brand products, NAD rejected that argument, finding that the advertiser's product and the leading products are all antifungals treating athlete's foot. NAD also rejected advertiser's argument that its use of a different type of applicator for its product did not create a special category for it that would justify the omission of the leading products (with different applicators) from the survey.
Finally, NAD found the survey unreliable because it was conducted prior to a formula change in the advertiser's product, specifically to the product's active ingredient, and because the survey instrument conflated questions about products and brands. Accordingly, NAD recommended the challenged claim be discontinued and the advertiser agreed to comply. Case Report #6400.
Originally published by Frankfurt Kurnit, September 2020
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