Hunton Retail Law Resource

The National Advertising Division (NAD) has recommended that Factor Nutrition Labs, LLC, discontinue its claim that its Focus Factor brain health supplement is “America’s #1 Clinically Studied and Patented Brain Health Formula.” NAD’s decision follows a challenge by Quincy BioScience, Inc. (Quincy), the maker of Prevagen brain health dietary supplement.

The National Advertising Division (NAD) affirmed that Reckitt Benckiser, Inc.’s claim of “#1 Carpet Cleaning Brand” for its Resolve Carpet Cleaner product line is supported by the appropriate underlying unit sales data. Responding to a challenge brought by BISSELL Homecare, Inc., NAD noted that Reckitt Benckiser’s “#1 Brand” claim is properly understood to mean that the brand itself, rather than any specific product, holds the highest market share in its relevant category. To that, Nielsen tracking data for units of products sold to consumers in the “carpet cleaning brand” category supports Reckitt Benckiser’s “#1 Brand” sales superiority claim for the Resolve products. Still, NAD noted that Reckitt Benckiser fails to properly identify the time period and scope for the relevant data in its disclaimer. Reckitt Benckiser has agreed to comply with NAD’s recommendation of a modified disclaimer in the future use of its “#1 Brand” claim.