Hunton Retail Law Resource

The National Advertising Division (“NAD”) was busy this past week. The organization recommended that several companies modify or discontinue claims made for the following consumer products.

NAD Recommends Two Phillips Oral Healthcare Commercials Be Discontinued

The NAD has recommended that Philips Oral Healthcare (“Sonicare”) discontinue the use of two Sonicare brand commercials.

Among the list of challenged claims, the NAD determined that the ads reasonably conveyed the unsupported claim that Sonicare provides better cleaning and healthier gums than Oral-B.

According to the NAD, the first commercial conveyed the unsupported messages that Sonicare FlexCare cleans teeth better than Oral-B PC 5000 and produces healthier gums in two weeks than Oral-B PC 5000. The ad also suggested that the Sonicare brush provided cleaner teeth and healthier gums over Oral-B PC 5000 because of its increased brush movements.

The NAD found that the second commercial conveyed the unsupported messages that Sonicare cleans teeth better than other electric toothbrushes, produces healthier gums in two weeks than other electric toothbrushes and provides an oral health benefit because of the product’s 62,000 brush movements.

Finally, the NAD determined that the claim, “most loved rechargeable toothbrush brand in America,” was puffery which required no substantiation. By contrast, the NAD found that the claim that Sonicare was the “most loved electric toothbrush brand by Americans and their dentists” was an objectively provable claim and should be discontinued in the absence of support.

Sonicare has agreed to comply with the NAD’s recommendations.

NAD Supports Oral-B “Superior” Claim to Phillips Oral Heathcare

The NAD has upheld Oral-B’s claims of superiority for the Oral-B PRO 5000/7000 and Oral-B Pro Series (both with CrossAction brush head) in comparison to the Sonicare DiamondClean brush. However, the NAD has recommended that Oral-B specifically state in its ads which products were being compared.

Sonicare objected to both claims, questioning the reliability of the studies in support of the claims, as well as whether the claims caused confusion as to which products were being compared.

The NAD concluded that the studies Oral-B relied on constituted competent and reliable scientific evidence, but Oral-B needed to expressly state which products were being compared.

Oral-B has agreed to follow the NAD’s recommendations.

NAD Recommends Discontinuation of ‘Omax3 Ultra Pure’ Dietary Supplement Claims

The NAD found that Prevention Pharmaceuticals, Inc., provided a reasonable basis for its claim that “Omax3’s exceptional purity is a result of double molecular distillation – a process that takes place in a vacuum and uses no heat and special enzymes” and the company has “two certificates for each batch assuring purity and concentration.” While the NAD found these claims to be supported, it recommended that Prevention Pharmaceuticals discontinue the additional language in the ads that the product is effective “to get rid of unhealthy saturated fats and toxins, such as mercury, lead and PCBs commonly found in fish.” The NAD also recommended that the company discontinue nearly 30 other claims pertaining to purity, superiority and efficacy.

Prevention Pharmaceuticals, while disagreeing with portions of the NAD’s decision, stated that it will comply with the decision.

NAD Recommends Discontinuation of MyPurMist Handheld Steam Inhaler Claims

The NAD has recommended Vapore, LLC, discontinue claims that its MyPurMist Handheld Steam Inhaler has more “5-star reviews than any other steam inhaler.”

Vapore argued its claim was supported by ratings captured from different retailer websites as of March 30, 2016. Vapore further argued that the consumer testimonials were provided by consumers who received no compensation for their testimonials. The company argued that it properly disclosed to consumers that “Individual Results May Vary.”

While NAD found that Vapore’s claim was largely based on verified reviews and found the sample size robust and representative, it also determined there existed the potential for double-counting reviews. The NAD also noted that older reviews could not be assumed to be as reliable, and that a star rating without other substantiation does not indicate the basis for the rating. The NAD thus recommended that Vapore discontinue the claim.

The NAD also found that consumer testimonials crediting the product with relieving sinus conditions, reducing or eliminating coughing and headaches due to allergies, relieving flu symptoms and improving sleep, were unsupported and therefore should be discontinued.