NARB Disagrees with NAD on Package Disclosures

Glad advertises that its ForceFlex MaxStrength bags are ​“25% more durable.” More durable than what? If you follow an asterisk, you’ll learn that they are 25% more durable than Glad’s own 13-gallon ForceFlex bags. A competitor – presumably worried that consumers would think that Glad was making a comparison to its bags – brought a challenge before the NAD, questioning whether the basis of comparison was sufficiently clear. NAD didn’t think that was clear, either on the website or on packages. (See our summary here.) Glad appealed the decision with respect to the packages.

The NARB panel majority came to a different conclusion from NAD on the packages. Two of the three panelists found that, in the context of the three samples they were provided, Glad’s 25% more durable” claim is not misleading. One panelist thought because an asterisk after the claim linked to a disclosure on the same panel, the disclosure was sufficiently clear. Another panelist thought the basis of the claim was clear, even without the disclosure. And the third panelist found the claim to be misleading because the disclosure wasn’t sufficiently clear.

This close decision underscores how tricky it can be to get disclosures on packages right, but there are a few lessons we can glean from it. First, it’s clear that NAD wants disclosures to appear on the same panel as the claims they qualify. (Some courts are more flexible.) Second, NAD wants those disclosures to appear in close proximity to the claims. This decision, though, suggests that advertisers may have some flexibility on that point as long as the disclosures are linked to the claim with an asterisk and are otherwise clear.