Ad Law Access Updates on advertising law and privacy law trends, issues, and developments Sun, 30 Jun 2024 04:57:26 -0400 60 hourly 1 NARB Decision Holds Lessons for Claim Substantiation Wed, 09 Aug 2023 00:00:00 -0400 NARB recently announced a decision in a case involving various claims that Shark Ninja made in an infomercial for its Shark Stratos Powered Lift-Away vacuum cleaner, including claims about how well the vacuum picks up hair and how well it reduces odors. The decision covers a lot of ground – Dyson challenged six express claims and nine implied claims – but we’re just going to focus on a few issues that come up regularly in our conversations with clients about claim substantiation.

Best Hair Pickup Claims

Shark advertised that the Stratos vacuum offered “the best hair pickup of any upright vacuum in America.” There are a lot of upright vacuums in America, so a threshold question is how many vacuums need to be included in test to support this type of claim. The general rule is that if an advertiser makes an unqualified claim against an entire category of products, it must test against 85% of that category. Shark argued that the “85% rule” is a flexible standard that shouldn’t apply here.

Shark only tested 17 competing vacuums and defended its decision by saying it only had to test against vacuums that “specialize” in hair pickup. (Evidence in the record suggest that these models comprise only 2.3% of the upright market by unit share.) Both NAD and NARB rejected this argument, noting that Shark’s selection reflected “advertising strategies, not performance capabilities.” Accordingly, despite good test results, NARB determined that Shark’s tests were not sufficient to support its broad claims.

Dyson also took issue with other aspects of the test protocol. For example, although the infomercial showed the Stratos picking up a variety of hair from multiple surfaces, the test only measured pet hair pickup on one surface. Both NAD and NARB agreed this was a problem. NARB wrote that “different lengths of human hair should have also been used in the testing. This is especially the case here, given the prominent express reference to various types of hair in the infomercial.”

Vacuuming Hair

Odor Reduction (or Elimination) Claims

The infomercial stated that Shark had solved the problem of vacuum odor with breakthrough odor neutralizer technology that “interacts with odor-causing particles and transforms the bad odors into fresh-smelling air.” To support this claim (and other similar claims), Shark submitted a gas chromatograph mass spectrophotometry test, a sensory analysis testing conducted by an independent laboratory, and an in-home use testing conducted by Shark. The tests showed good results.

Although NAD and NARB both determined that Shark’s tests showed a reduction in odors, Dyson argued that the claims in the infomercial went further and suggested that that Shark’s odor neutralizer technology “eliminates” – not just reduces – odors. NAD and NARB agreed, finding that parts of the infomercial exaggerated the vacuum’s capabilities. While Shark’s tests could support a more narrow odor reduction claim, they weren’t enough to support the broader claims in the infomercial.

As with the “best hair pickup” claims, NAD and NARB also determined that there were certain visuals in the infomercial didn’t match up with the test protocol. For example, although the sensory analysis tests had trained panelists smelling the vacuums from several feet away, the infomercial showed actors with their noses inches from the vacuums. In addition, the odors used in the lab test didn’t match the odors used in the infomercial.

Smell Test

What to Pick Up from This Decision

Although a footnote in the NARB decision suggests there may be some flexibility in the application of the 85% rule, NARB determined that they didn’t need to address the boundaries, “given that Shark’s testing was easily determined to have been inadequate in scope.” Absent more guidance from NAD or NARB on this issue, advertisers should probably either follow the 85% rule or qualify their claims to reflect a more manageable category for testing purposes.

The decision also demonstrates that it’s important to ensure that whatever you show in your ads has to be closely tailored to your test protocol and the test results. There are a number of cases in which advertisers have been able to demonstrate superior performance in lab tests, but still lost advertising challenges when their ads exaggerated the results or depicted conditions that different from those that were tested.

NAD Reads Into WSJ’s “Cancel Anytime” Claims Mon, 31 Jul 2023 00:00:00 -0400 Most NAD cases are brought by competitors, but NAD can also initiate a proceeding pursuant to its “responsibility for monitoring and reviewing national advertising for truthfulness and accuracy.” Looking at the cases NAD initiates on its own can help provide insights into its priorities and strategies.

A few months ago, NAD initiated an inquiry into an Instagram post sponsored by Blue Apron claiming that “Canceling meals is easy.” In reviewing whether Blue Apron offered consumers easy ways to cancel meals, NAD noted that the FTC’s recent report on “dark patterns” suggests that consumers should be able to cancel a subscription-based service through the same medium they used to sign up.

This month, NAD announced that it had initiated an inquiry into The Wall Street Journal’s express claim that subscribers could “cancel anytime.” Interestingly, NAD also read an implied claim into those two words:

NAD determined that a claim that consumers can “cancel anytime” reasonably conveyed the message that cancelling is easy. A consumer might reasonably expect that the ease of cancelling a subscription is similar to the ease of subscribing.

At the start of the inquiry, WSJ offered online cancellation to certain subscribers, but other subscribers had to call to cancel. During the proceeding, WSJ completed its planned expansion of its cancellation procedures to allow everyone to cancel online. Based on this change, NAD concluded that WSJ was able to substantiate the express and implied claims.

Notably, NAD doesn’t have authority to enforce automatic renewal laws or to require companies to establish specific cancellation procedures. Nevertheless, NAD pursued the same result by reading a specific procedure into WSJ’s statement that subscribers could “cancel anytime.”

Presumably, WSJ could have pushed back on NAD’s reading and refused to comply with its recommendations, but that would have likely triggered a referral to the FTC at a time the Commission is actively looking at these issues and seeking to impose penalties on companies that use “dark patterns” to make cancellation difficult.

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