Hunton Retail Law Resource

This past week, the National Advertising Division (“NAD”) of the BBB issued a number of opinions and recommendations.

NAD Recommends Clorox Packaging Change

The NAD has issued a recommendation that The Clorox Company modify its packaging and a package insert to ensure consumers understand that Clorox’s zinc pyrithione works to prevent odors on the drawstring of the company’s “Glad Tall Kitchen Drawstring Bags.”

The issue was not whether the product worked as described, but whether the branding and description led consumers to believe that the product protected against food-borne or disease-causing bacteria or germs.

NAD’s conclusion was that “the combined design elements, in the context in which they are found on the product packaging, reasonably conveyed a confusing, if not inaccurate, message as to the specific antimicrobial protection offered...[and] that consumers could reasonably understand ‘antimicrobial protection’ to mean protection from bacteria and germs rather than odor produced by bacteria and germs on the drawstring.”

Clorox has said that while it does not agree with NADs’ findings, it will consider the group’s recommendation in future advertising.

Mega-T Maker to Discontinue Fat Burning Claim

The NAD has recommended that Mega-T, LLC, the maker of “Mega-T Green Tea Fat Burning Supplements,” discontinue its fat burning claim.

At issue were claims made by Mega-T in advertisements , including:

• “Now Mega-T has an advanced system that combines probiotics with clinically-effective green tea to help you achieve your weight loss goals.”
• “Every Mega-T product is formulated to help you burn more calories than you would otherwise.”
• “Mega-T will help increase your energy level and fight fatigue, so you can enjoy an active healthy lifestyle.”
• “Every Mega-T product is scientifically formulated to affect the fat oxidation process in your body to help you convert stored fat into burned fat.”
• “Free radicals in your body can cause both damage and premature death to your cells. Antioxidants help fight against free radical damage so you can lead a healthier lifestyle.”

NAD did not review the claims on the merits; however, it determined that the studies and evidence relied upon by Mega-T “did not support the advertiser’s broad, unqualified ‘boosts metabolism’ claim.” The decision and recommendation by NAD would still allow Mega-T to make more narrowly tailored claims, including on the short-term nature of the recorded metabolism benefit.

While Mega-T disputed the NAD’s findings, the company has agreed to permanently discontinue certain advertising claims and will modify other claims as necessary.

Beiersdorf Says it Will Discontinue Six-Hour Claim for ‘Aquaphor’ Diaper Rash Cream Following NAD Inquiry

The maker of Aquaphor Baby Diaper Rash Cream, Beiersdorf, Inc., has agreed to comply with an NAD recommendation to permanently discontinue use of its claims that the product relieves diaper rash in six hours.

The two claims at issue were that the Aquaphor Baby Diaper Rash Cream would “[t]reat and [r]elieve diaper rash within six hours,” and was “[c]linically proven to relieve diaper rash within 6 hours.”

The NAD sought substantiation for both of these claims. While Beiersdorf claims it had reliable scientific evidence to support the claims, for business reasons, it had already decided to permanently discontinue using these claims.

Vaughn College Told to Modify or Discontinue Certain Graduation Rates and Starting Salary Claims

The Electronic Retailing Self-Regulation Program (“ERSP”), similar to NAD, is a division of the Advertising Self-Regulatory Council of the BBB, has recommended that Vaughn College modify or discontinue certain claims in its advertising.

Among the claims Vaughn College made in advertisements reviewed by ERSP are:

• “92% of Vaughn grads are employed or continue their education within one year.”
• “Average starting salaries: $61,125 – Mechatronics; $45,255 – Engineering Technology; $45,050 – Aircraft Operation (flight); $45,585 – Management; $34,551 – Aviation Maintenance”

When asked to provide substantiation, Vaughn College provided results from its “graduate outcome survey.” A review of the survey showed the message could suggest that 92 percent of Vaughn grads were employed in either their major field of study or a related field, but the survey could not support such an inference. ERSP also noted that, “even if those respondents who were working in jobs unrelated to their field of study were included in the calculation, the number was still slightly less than the advertised figure.”

The ERSP recommended that average starting salaries should “clearly and conspicuously disclose the basis for those representations.”

Vaughn College said it would work to implement the ERSP’s recommendations.