A Practical Guide to Challenging Your Competitor's Advertising Claims
Learn how to evaluate the options for challenging a competitors claim, including initiating an NAD proceeding, alerting regulators and litigating under the Lanham Act.
Kelley Drye’s advertising and marketing lawyers have significant experience in challenging and defending cases before the National Advertising Division (NAD) of the Council of Better Business Bureaus, the premier advertising self-regulatory body in the United States. We help clients take advantage of the NAD’s resolution process to tackle advertising disputes with more speed and efficiency than traditional litigation typically offers. Our attorneys also have experience appearing before the National Advertising Review Board (NARB) when NAD decisions are appealed. Clients benefit from our understanding of the NAD’s process and its sensitivity to balancing consumer protection and free commercial speech.
Our attorneys regularly represent both complainants and respondents in self-regulatory proceedings and in challenges before ABC, NBC, CBS and FOX networks. At the NAD and before the networks, we have been successful in both forcing competitors to modify or discontinue challenged advertisements and demonstrating that our clients’ advertising claims are substantiated.
Representative Experience
- Represented a major over-the-counter headache relief tablet manufacturer in an NAD challenge and an appeal before the National Advertising Review Board (NARB) of the Council of Better Business Bureaus regarding pain relief claims.
- Represented a leading paint and wall coverings company in an NAD challenge and NARB appeal relating to claims of odor reduction.
- On behalf of an appliance manufacturer, challenged a competitor’s
unqualified germ killing and health-related cleaning and performance
claims, endorsement and testimonial claims for ultraviolet vacuum. The
NAD recommended that several of the competitor’s claims be discontinued
and expressly qualified.
- On behalf of an air conditioning system provider, challenged the
truth and accuracy of a competitor’s express and warranty disclosure
claims for HVAC products and 10-year warranty. The NAD recommended that
the competitor’s advertisements be modified to clearly and
conspicuously disclose the conditions of the warranty.
- Provided substantiation of performance and warranty claims for
exterior paint coating, per the NAD’s request. The NAD determined that
a reasonable basis for substantiation of claims was provided by our
client, a paint company.
- Defended a maker of dietary supplements in a challenge regarding
substantiation of performance, exclusivity, establishment and expert
endorsement claims made in advertising a sleep formula. The ERSP
determined that our client had substantiated claims and recommended one
minor modification.
- Defended one of the world’s largest consumer electronics firms in a
competitor challenge regarding advertising claims comparing the
company’s plasma televisions to competing LCD televisions. The NAD
determined that our client had reasonable basis and substantiation for
the principal claims, and recommended one modification.
- On behalf of a Fortune 50 consumer products company,
challenged the truth and accuracy of comparative advertising claims
made by a competitor. The NAD determined that the competitor’s
comparative claims lacked substantiation.
- Defended the maker of dietary supplements in a challenge brought by
a competitor regarding substantiation of establishment, performance and
comparative claims. The ERSP determined that our client provided
reasonable basis for performance claims.
- On behalf of a chemistry trade association, successfully challenged
advertising claims made by the maker of baby bottles. The claims at
issue attempted to exploit a minority of scientific opinion in the sale
of baby bottles that do not contain bisphenol-A. The NAD agreed that
the claims were unsubstantiated and recommended that they be
discontinued.
- Challenged two advertising claims made by a dating website, which
the NAD recommended they discontinue due to lack of substantiation.
- Challenged advertising claims of a deep cleaner vacuum. The NAD
decision in favor of the competitor was reversed by NARB in favor of
our client, which was one of only two NARB reversals in the past 10
years.
- On behalf of a Fortune 500 athletic equipment and apparel
manufacturer, challenged a competitor regarding express and implied
superiority claims about its ice hockey helmets. The NAD recommended
that the competitor discontinue its comparative performance,
endorsement and fatigue claims.
- Challenged a number of claims in an Internet service provider
company’s advertisements. The NAD agreed that these claims were
misleading, and the competitor agreed to comply with all aspects of the
NAD decision, except for the NAD’s recommendation that the company
discontinue the broadband comparisons. The competitor appealed this
part of the decision, and the NARB rejected their argument, adopting
Kelley Drye & Warren’s arguments instead and affirming the NAD’s
decision.
- On behalf of a Fortune 100 industrial conglomerate,
challenged product packaging claims made by a competitor’s antifreeze
product. The NAD recommended that the competitor modify its packaging
to substantiate the truth and accuracy of its claims.
- Challenged the truth and accuracy of a dietary supplement
manufacturer’s comparative pricing claims related to a vitamin
supplement. The NAD recommended that the competitor discontinue these
claims and modify pricing structure to comply with FTC regulations.
- Challenged truth and accuracy of claims made by a wireless
communications service provider regarding the scope of coverage for
their in network rate plan. The NAD recommended the company discontinue
or modify its claims. In a separate action, demonstrated that our
client’s claim that its service was available coast to coast was
substantiated.
- Defended one of the largest enterprise software companies in a
challenge from a competitor for claims made in a database software ad
campaign. The NAD determined that our client’s price comparison claims
were substantiated.
- Challenged ads implying that a quick service restaurant’s hamburgers contained substantially more meat than our client’s burgers. After the competitor voluntarily promised to discontinue its claims, the NAD closed the case.
