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Force Factor Brands markets its Total Beets line of beet-based dietary supplements as “America’s #1 Best-Selling Beets Brand,” the “#1 Best Selling Beets Brand in America,” and the “#1 Beets Brand in America.” A competitor, Human Power of N Company, challenged those claims before the National Advertising Division, arguing that Human was actually the market leader when sales were measured by total revenues rather than unit sales.
How should advertisers substantiate a “best selling” claim?
In this case, NAD reiterated the established NAD principle that “#1” sales claims should ordinarily be substantiated by unit sales rather than revenues. NAD explained, “NAD has frequently held that unit sales are generally the appropriate metric for substantiating ‘#1' sales-ranking claims because such claims communicate that the advertised brand is purchased.”
Human argued here that unit sales wasn't the appropriate measure here because dollar sales provide a more consistent and certain basis for comparison. Human explained that the parties' products are sold in multiple forms, such as powers, capsules, gummies, soft chews, and tables, as well as in different package sizes. The NAD wasn't persuaded by this argument, however.
The NAD decided, then, that for the claims where Force Factor is making explicit #1 sales claims, the company had provided adequate substantiation by showing that it had higher unit sales. The NAD held, however, that where Force Factor was just claiming to be the “#1” brand, without referencing sales, the company should disclose that the basis for its claim was unit sales.
Human Power of N Company v. Force Factor Brands LLC, NAD Fast-Track SWIFT Case No. 7591 (July 6, 2026).
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