NARB Online Newsletter

NARB Panel Report #167 / CenturyLink High-Speed Internet Service

2011-08-18T07:58:00.000-07:00

Appeal of NAD Final Decision
Regarding Advertising by CenturyLink, Inc. for
High-Speed Internet Service

Background:
Suddenlink, Inc.(“Suddenlink”) challenged print and Internet advertising claims by CenturyLink, Inc.(“CenturyLink”) for its Internet services. The challenged advertising included claims that touted the direct/private connection between consumers and CenturyLink’s network, as shown by the following examples:

“That means you will go consistently fast all day every day, with a private, direct connection to our fiber-optic network.”

“Unlike cable, our super-fast connection includes a private, dedicated connection
between your house and our network.”

“Find out what you are not getting with cable. Get consistent speeds with a private, direct connection for one low price.”

“With cable, you could be sharing Internet speeds.”

In addition, Suddenlink challenged CenturyLink’s claim that it had a “fiber-optic network” and also CenturyLink’s claim that consumers could save up to $350/year on CenturyLink’s Internet services as compared to charges by cable companies.

NAD determined that CenturyLink’s claims relating to the direct/private connection between consumers and its network conveyed a superior performance message that, as a result of the direct and private connection, consumers will get a faster and more consistent Internet experience as compared to cable networks. NAD found this message was not supported by the record and recommended discontinuance of these challenged claims.

NAD also determined that one of the reasonable messages conveyed by CenturyLink’s claim that it has a “fiber” or “fiber-optic” network is that its network consisted entirely of fiber optics. NAD found that this message was not supported by the record and recommended that CenturyLink discontinue claims that it has a “fiber” or “fiber-optic” network.

Finally, NAD determined that CenturyLink had not provided a reasonable basis to support its claim that consumers could save up to $350/year as compared to cable companies and NAD recommended that the claim be discontinued.

Findings and Conclusions:
Claims relating to direct/private connection between consumers and CenturyLink’s network:
No consumer perception evidence was introduced in this case, and thus the panel must place itself in the shoes of consumers to determine the messages reasonably conveyed by the challenged advertising. The panel agrees with NAD’s determination that the challenged claims reasonably convey a superior performance message that, as a result of the direct and private connection between consumers and CenturyLink’s network, consumers will get a faster and more consistent Internet experience as compared to cable networks. The challenged claims clearly contrast CenturyLink’s direct/private connection with the shared Internet connection offered by cable providers and convey the message that CenturyLink’s direct/private connection results in a faster and more consistent experience.

As explained below, the panel also agrees with NAD that CenturyLink has not provided a reasonable basis to support this superior performance message. It is clear that the “last mile” architecture used in the CenturyLink network is different from that used by cable companies. CenturyLink customers are connected directly through a single phone line running from the customer’s home to CenturyLink’s Digital Subscriber Line Access Multiplexer (“DSLAM”), which is linked to CenturyLink’s communications network, while the “last mile” connection to the homes of cable customers may be shared among several customers.

While different network architectures require the use of different techniques to maximize user experience, the record does not establish that CenturyLink’s direct and private connection to homes results in a faster or more consistent experience as compared to cable customers. The record does not include any head to head comparisons with respect to speed and consistency of CenturyLink customers and cable customers. While the record establishes potential issues that could arise from shared “last mile” architecture, the record does not provide a reasonable basis to establish that these issues are not appropriately managed by cable companies or that there are consumer relevant differences in the Internet experiences of consumers that result from these differences in “last mile” architecture.

The panel’s decision is based on the record in this case, although it is noted that the decision is consistent with prior NAD precedent that found no evidence of consumer relevant performance distinctions between private DSL connections similar to CenturyLink’s and shared cable connections. CenturyLink based its arguments in part on the contracts signed by Suddenlink customers, which permit Suddenlink to limit its customers’ upstream applications and overall bandwidth if necessary. While this raises the theoretical possibility that Suddenlink customers could experience limitations with respect to the speed or consistency of their Internet experience, it
does not provide a reasonable basis for advertising claims that convey the message that meaningful speed/consistency differences exist. In fact, the record is clear that different network architectures require different management techniques to ensure a fast and consistent experience,and the panel is not prepared to speculate whether CenturyLink’s network is providing a faster/more consistent experience without evidence to show that is the case.

The panel recognizes CenturyLink’s right to accurately describe differences between its network architecture and the network architecture used by its competitors, but it should not do so in a manner that implies performance benefits that cannot be substantiated.

Fiber-optic network claims:
CenturyLink advertisements claim that it has a “fiber” or “fiber-optic” network. While most Internet providers use fiber-optic cable for the “backbone” of their networks, there are differences as to what is used in the “last mile” that connects the providers’ offices to individual homes. Some networks use fiber-optic cable that runs all the way to the consumer’s home, while CenturyLink uses fiber-optic cable in most instances only up to a DSLAM connection that is connected to consumer homes by phone lines. NAD determined that at least one reasonable interpretation of CenturyLink’s claims to have a fiber or fiber-optic network is that its services are provided over a network that solely consists of fiber-optic cable all the way to consumer homes. The panel agrees that this is one of the messages reasonably conveyed by the challenged advertisements, and further agrees with NAD that this message is not supported by evidence in the record.

Savings claims:
CenturyLink’s advertising claims that consumers will save up to $350/year by subscribing to its Internet service. This is based on a comparison of (a) the $14.95 monthly cost for Internet service that is part of CenturyLink’s bundled price for Internet, television and telephone services with (b) stand alone prices charged by cable companies for Internet services. The record showed that, in some markets, consumers would have to pay $79.95 or more for CenturyLink’s bundled services. The claimed $350/year savings is not supported by the record. CenturyLink is calculating the savings based on a $14.95 monthly cost for Internet services that cannot be separately purchased for $14.95, and its savings analysis does not take into account the full costs involved in purchasing the required bundled package. The claimed savings is not achieved when consumers purchase the Internet/television/telephone bundle, which is the only way that consumers can receive Internet services at the stated price. While CenturyLink is free to make truthful comparisons of its stand alone Internet costs with the stand alone costs of competitors, it cannot support a savings claim for one part of bundled services by ignoring the total price that must be paid for the other services. The represented price savings is not a meaningful one when it cannot be achieved without additional expenditures, and those additional expenditures need to be factored in before a meaningful savings claim can be made.

Decision:
The panel thanks both parties for participating in this process, which is an important part of the advertising industry’s self-regulatory efforts to ensure the truthfulness and accuracy ofadvertising claims. The panel recommends that CenturyLink discontinue (a) claims stating or reasonably implying that, as a result of the private and direct connection between consumers and CenturyLink’s network, consumers receive a faster and more consistent Internet experience1; (b) claims that it has a fiber or fiber-optic network unless it is referring to a network that uses fiber-optic cable all the way to consumer homes; and (c) the challenged claims of up to a $350 savings for its Internet services based on bundled pricing that includes Internet services.

Advertiser Statement:
CenturyLink appreciates the opportunity to participate in the self-regulatory process and the panel’s review of the earlier NAD decision. CenturyLink respectfully disagrees with the panel’s decision in this matter, and strongly believes it provided sufficient substantiation for comparative claims regarding network design differences and traffic management tactics that meaningfully impact customers’ high-speed Internet experience, accurately used the terms “fiber” and “fiberoptic”to describe its network, and properly supported and disclosed savings claims related to high-speed Internet services within service bundles.

While CenturyLink disagrees with the panel’s ruling and analysis, it will carefully consider the panel’s comments and recommendations in the development of future high-speed Internet advertising and comply with the decision. In addition, CenturyLink will continue to describe how its technology functions in an accurate and non-misleading manner in future advertising.

_______________________
1 This does not prevent CenturyLink from making claims when it has a reasonable basis for doing so based on actual user experience.

Board Members for Panel #167

Alice Kendrick (Chair)
Professor
SMU - Temerlin Advertising Institute

Kevin M Scully
Director, IBM Americas Marketing
IBM

Pamela M. Rachal
Senior Manager, Advertising Services
Bayer HealthCare LLC

Howard Courtemanche
Executive Vice President
JWT

Beau Fraser
Managing Director
The Gate Worldwide

NARB Panel Report #166 / Time Warner Cable, Inc.

2011-08-02T10:25:00.000-07:00

Appeal of NAD Final Decision
Regarding Advertising by Time Warner Cable, Inc.

Background:
Verizon Communications, Inc.(“Verizon”) challenged claims by Time Warner Cable, Inc.(“Time Warner”) – in television, print, and Internet advertising – for its television, Internet and telephone services (“telecommunications services”). The challenged claims described Time Warner’s telecommunications services network as a fiber optic network and advanced fiber optic network, as demonstrated by the following examples:
• “[Time Warner’s] fiber-optic network delivers speeds up to 15 Megs for a
dramatically faster online experience.”
• “Road Runner Turbo is zooming across the advanced fiber network.”
• “[Time Warner’s] “advanced fiber network lets you experience the web like never before.”
• “[Time Warner’s] advanced fiber optic network delivers the future to you… for less.”

NAD determined that at least one reasonable interpretation of Time Warner’s claim to have a fiber optic network was the message that Time Warner offers its telecommunications services over a network that (1) solely consists of fiber optics and (2) is the functional and/or technical equivalent of a telecommunications services network where fiber optics extend to the home. NAD further determined that Time Warner did not provide a reasonable basis to support this message, and recommended that Time Warner discontinue use of the phrase “fiber optic network” to describe its network.

Findings and Conclusions:
Differences in network structure:
Times Warner, which described itself as an early adopter of fiber optic technology, argued it was entitled to identify its network as “fiber optic” because it used fiber optic cable in over 95% of the network.

While most telecommunications providers currently use fiber optic cable for the “backbone” of their networks, there are differences as to what is used in the “last mile” that connects the providers’ offices to individual homes. For example, both Verizon’s FIOS service and Time Warner use fiber optic cable for their networks’ “backbone.” Verizon’s FIOS network, which has been described as a “Fiber to the home” network, also uses fiber optic cable from Verizon’s central offices to a terminal attached to the consumer’s home. Time Warner’s network, which has been described as a “hybrid fiber coax” or “Fiber to the node” network, uses fiber optic cables from its central offices to a neighborhood “node,” and from that point coaxial cable is used in the “last mile” to connect the node to each consumer’s home.

The record in this case indicates that “last mile” architecture is relevant to a network’s performance capabilities. Prior NAD cases recognized differences between “Fiber to the home” networks and “Fiber to the node” networks, and the evidence in the present case shows those differences continue to exist. The record indicates that “Fiber to the home” networks are generally considered to represent the highest level of technology currently used for consumer telecommunications services.

What are reasonable consumer takeaways with respect to networks represented to be “fiber optic”?
No consumer perception evidence was introduced in this case, and thus the panel must place itself in the shoes of consumers to determine the messages reasonably conveyed by the challenged advertising.

The panel has determined that, for many consumers, the messages reasonably conveyed by Time Warner’s description of its network as “fiber optic” include (1) fiber optics are used for transmission throughout the entire network controlled by Time Warner 1 and/or (2) Time Warner’s network represents the highest level of technology currently used by consumer telecommunications services providers. These messages are reinforced by the challenged advertising’s repeated emphasis on speed and the advanced nature of the Time Warner network.

Both parties provided an extensive record concerning the terminology used by a variety of sources – including industry, media and government – in describing consumer telecommunications services networks. The panel’s findings are consistent with the terminology commonly used by these sources. The record contains numerous examples of media and industry communications that identify the Verizon FIOS network as a “fiber optic” network and use other descriptors -- such as cable, hybrid fiber coax, or DSL -- to describe networks like Time Warner’s that do not run fiber optic cable directly to individual homes. Media usage is also consistent with reasonable consumer perception that fiber optic networks represent the highest level of technology currently used by consumer telecommunications services providers.

The panel recognizes that many products and services may be appropriately described by reference to their predominant characteristic. However, reference to the predominant characteristic of a product or service can be misleading if, as in the present case, that reference reasonably implies attributes that are not substantiated.

Time Warner does not dispute that its telecommunications services network does not use fiber optic cable throughout its entire network because fiber optic cables are not used in the “last mile” to consumer homes. In addition, Time Warner has not provided a reasonable basis to show that its network represents the highest level of technology currently used by consumer telecommunications services providers.

___________________________________
1 The parties in this case debated the meaning of “network,” including questions of whether it would be
understood to end at the door of consumer homes or at specific devices within a consumer’s homes. While
this could be a matter debated among sophisticated users, the panel believes that the more common reasonable
perception is that a “network” describes the entire flow of transmissions controlled by providers up to (but not
inside) the home.
___________________________________

Decision:
The panel thanks both parties for participating in this process, which is an important part of the advertising industry’s self-regulatory efforts to ensure the truthfulness and accuracy of advertising claims.

The panel recommends that Time Warner discontinue the challenged claims that its telecommunications services are provided on a fiber or fiber optic network.

Advertiser Statement:
Time Warner Cable respectfully disagrees with the NARB panel’s decision and maintains that: (1) its advertising claims to have a fiber optic network are fully substantiated; and (2) its non-comparative “fiber optic network” claims cannot reasonably be interpreted to imply that its fiber-to-the-node network is the same as FiOS’s fiber-to-the-home network. Time Warner Cable believes that the panel’s decision denies Time Warner Cable the opportunity to truthfully and accurately describe its fiber optic network in its advertising – a practice which it has engaged in for two decades without any signs of consumer confusion or harm.

In addition, the panel's decision inhibits the ability of Time Warner Cable and other service providers to distinguish their services in areas where their competitors have indisputably inferior products. Despite its disagreement, however, in the spirit of the self-regulatory process, Time Warner Cable will take the panel’s decision into consideration and modify and/or withdraw the specific advertisements at issue to comply with the panel’s decision.

Board Members for Panel #166

Dr. Jan LeBlanc Wicks (Chair)

Professor & Graduate Coordinator

University of Arkansas

Pattie Glod

Senior Vice President, Marketing & Media Brand & Creative Services

Limited Brands, Inc.

Ron Jacobs

President

Jacobs & Clevenger, Inc.

Kathy Sharpe

Chief Executive Officer

Sharpe Partners

NARB Panel Report #165 / The Sherwin-Williams Company Dutch Boy Refresh Paint

2011-07-22T12:22:00.000-07:00

Appeal of NAD Final Decision
Regarding Advertising by The Sherwin Williams Company for
Dutch Boy Refresh™ Paint

Backround:
PPG Architectural Finishes, Inc. (“PPG”) challenged claims made by The Sherwin-Williams Company (“Sherwin-Williams”) for its Dutch Boy Refresh™ paint. The challenged claims were made in print, point-of-sale, internet, labeling and television advertising. The challenged claims include:
• “eliminates household odors”
• “continuously eliminates odors day after day”
• “The first and only paint with Arm & Hammer Odor Eliminating Technology….”

NAD found that, in the context of the challenged advertising, references to “continuously eliminates household odors” and “odor eliminating technology” reasonably implied that Refresh paint will reduce odors to an olfactory level that is not detectable to the average consumer during the useful life of the paint. NAD determined that testing submitted by Sherwin-Williams provided a reasonable basis for a claim that Refresh Paint helped to reduce odors, but did not support claims that it eliminated odors. NAD also found that the testing submitted by Sherwin-Williams did not provide a reasonable basis to support any durational claims.
NAD recommended that Sherwin-Williams discontinue the challenged claims or modify them to better reflect test results. Sherwin-Williams agreed to discontinue its durational claims (e.g., “continuously” and “day after day”), but appealed NAD’s findings as to the message reasonably conveyed by claims that Refresh paint “eliminates household odors” and has “odor eliminating technology.”

Findings and Conclusions:

Claim that Refresh paint eliminates household odors:
The panel agrees with NAD that one of the messages reasonably conveyed by the “eliminates household odors” claim is that Refresh paint reduces odors to a level that is not perceptible by most consumers. The panel’s determination is based on the plain meaning of the word “eliminate,” which will be understood by most consumers to mean “get rid of” or “remove.” While the testing submitted by Sherwin-Williams establishes that Refresh paint helps to reduce odors through the removal of some odor particles, it does not establish that Refresh paint removes enough odor particles to reduce odors to an imperceptible level.

Claim that Refresh paint has “Odor Eliminating Technology”:

The challenged advertising includes claims that Refresh paint incorporates “odor eliminating technology,” in most cases through display of the Arm & Hammer logo with the phrase “Odor Eliminating Technology” immediately above it. The panel does not agree with NAD’s determination that, in the context of the challenged advertising, the claim that Refresh paint incorporates “odor eliminating technology” conveys the same message as the more direct claim that Refresh paint eliminates odors. Rather, the panel believes that reference to incorporation of “odor eliminating technology” reasonably conveys a message of what technology is included and how that technology works, not a promise that odor will be reduced to an imperceptible level. Diagrams on some, but not all, of the challenged advertising reinforce this by showing how the technology works through adsorption of odor particles. Inclusion of the Arm & Hammer logo provides further reinforcement by focusing on the inclusion of technology from another manufacturer. However, even in the absence of such reinforcement, the panel believes that reference to Refresh paint’s incorporation of “odor eliminating technology” will be reasonably perceived as a statement of the technology that is included and the way that it works, not a message that Refresh paint will reduce odors to an imperceptible level.

Decision:

The panel thanks the parties for participating in this process, which is an important part of the advertising industry’s self-regulatory efforts to ensure the truthfulness and accuracy of advertising claims.

The panel recommends that Sherwin-Williams discontinue claims that Refresh paint eliminates household odors or modify them to better reflect test results.

Advertiser’s Statement:
Sherwin-Williams thanks the NARB panel for its careful consideration of its appeal and is pleased to participate in the self-regulatory process. Sherwin-Williams is pleased that the panel agrees that its use of the phrase “odor eliminating technology” does not convey any unsubstantiated performance benefit for RefreshTM Paint and may continue to be used, including in executions that do not include further information on how the technology works. Sherwin-Williams is also pleased that the NARB panel affirmed that Sherwin-Williams’ substantiation research validated and substantiated the intended meaning of its claims: that RefreshTM Paint reduces household odors. Although it is disappointed that the panel did not agree as to the scope of the message conveyed by the “eliminates household odors” phrase, Sherwin-Williams will comply with the NARB panel’s recommendations.

Board Members for Panel #165:

Bonnie Drewiany

Professor

University of South Carolina

Andreas Combeuchen

CEO/CCO

Atmosphere BBDO

Abby Elu

Associate Manager, Interactive Marketing

Campbell Soup Company

Gary Zizka

Vice President, Public Policy

Diageo

Bruce Dunbar

Senior Marketing and Corporate Communications executive

NARB Panel Report #155 / Debbie Meyer Greenbags (Summary)

2010-02-23T12:00:00.000-08:00

Background: The advertising claims at issue were challenged before the National Advertising Division of the Council of Better Business Bureaus by S.C. Johnson & Son, Inc., manufacturer of Ziploc brand products.

Following its review of the evidence, NAD recommended that Housewares America modify certain advertising claims. Housewares America appealed NAD’s decision to the National Advertising Review Board (NARB).

Decision: The NARB panel determined that the studies provided by Housewares America did not reasonably establish that any positive effect achieved by using GreenBags resulted from the absorption of ethylene gas by the natural mineral embedded in the bags, and that there was, in fact, scientific evidence in the record that indicated any such positive effect resulted from other factors.

The panel recommended that Housewares America discontinue its claim that GreenBags extends the shelf life of produce by absorbing and removing ethylene gas. The panel also recommended that Housewares America discontinue superior product performance claims over original store packaging and other forms of storage such as sealable plastic bags and storage containers. Finally, the panel recommended that Housewares America discontinue the use in advertising/packaging of comparative photographs that do not fairly and accurately reflect the difference in product quality as documented in testing.

The advertiser agreed to follow NARB's recommendation.

Board Members for Panel #155

Dr. Jan LeBlanc Wicks (chair)
Professor & Graduate Coordinator
University of Arkansas

Eric Andrews
Vice President, WW Demand Generation
IBM Corporate Marketing

Michael Scherb
Director, Corporate Advertising and Branding
PSE&G

Patti Wells
Finance Manager
General Mills, Inc.

NARB panel confirms recommendations to PatentHEALTH

2010-02-08T09:15:00.000-08:00

Source: Tan Sheet

The National Advertising Review Board agrees with earlier recommendations by the National Advertising Division that PatentHEALTH discontinue claims that Trigosamine Fast Acting joint health supplement "works" or "gets results" in three days. The claims in question were not supported by a randomized, double-blind, placebo-controlled study submitted by the Canton, Ohio-based firm, the Council of Better Business Bureaus panel reaffirms in a review of an appeal by PatentHEALTH. Additionally, the board sided with NAD that an advertorial for the product reasonably could be perceived by consumers to be a news story. Therefore, the panel recommended the firm discontinue any ads "not clearly and conspicuously identified as an advertisement." PatentHEALTH, which appealed NAD's decision last summer, says it will give "due consideration" to the panel's recommendations.

NARB denies Novartis' appeal for Excedrin ad claims

2009-12-01T07:57:00.000-08:00

Source - Drug Store News - 11/30/09
By Michael Johnsen

NEW YORK (Nov. 30) The National Advertising Review Board last week denied an appeal made by Novartis Consumer Health around the advertising claim that Extra Strength Excedrin relieves pain after 15 minutes.

Following a challenge made by Wyeth Consumer Healthcare, the National Advertising Division of the Council of Better Business Bureaus had advised Novartis to discontinue the 15-minute claim.
The challenged television advertisement showed a woman suffering from a headache sitting at a table at an outdoor cafe. A digital clock rapidly advances below her. When the clock indicates 10 minutes had passed, a voiceover asks: “What’s the only gel tab with a triple-ingredient formula to start relieving your headache in just 15 minutes?”

At the 15-minute mark, the woman’s facial expression dramatically changes and she gets up, smiling, to greet someone. The voiceover answers the question by stating “Extra Strength Excedrin. Go.”

Novartis provided a proprietary clinical study that tested Extra Strength Excedrin to determine its efficacy in relieving pain intensity for episodic tension-type headaches, and argued that the clinical trial was sufficient to support an “onset of action” claim that Extra Strength Excedrin started to work on a pharmacological basis after 15 minutes.

The appeal panel agreed with NAD’s initial finding that the proffered substantiation did not provide support for the reasonably conveyed message that typical consumers can reasonably expect a reduction in headache pain within 15 minutes of taking Extra Strength Excedrin.
Novartis agreed to follow NARB's recommendation.

Excedrin Doesn't Relieve Headaches in 15 Minutes, Despite What Ads Said

2009-12-01T07:52:00.001-08:00

Source: BNET – 11.25.09

Novartis (NVS) should discontinue ads that say its Extra Strength Excedrin starts to relieve headaches in 15 minutes, according to the National Advertising Review Board, an appeals body that governs disputes between advertisers.

Download the ruling here.
Wyeth (now Pfizer - PFE), maker of Advil, had originally complained that Excedrin does not relieve headaches in 15 minutes. That dispute, heard by the The National Advertising Division of the Council of Better Business Bureaus, had also determined that Novartis’ Excedrin claim was bogus. Adweek:

Looking at Novartis’ study, the NAD found that the “statistically significant” number of respondents who reported feeling better 15 minutes after taking Extra-Strength Excedrin was “very small.”

Novartis appealed to NARB and the decision was upheld: Excedrin doesn’t really start to alleviate your headache in 15 minutes. This time Novartis has agreed to end its commercials. Indeed, they’ve disappeared from this page where they used to be.

And finally: Wasn’t the Excedrin account last seen at Saatchi & Saatchi?

Group recommends Wrigley not overstate gum's benefits

2009-11-25T08:20:00.000-08:00

Source: Chicago Tribune – 11.24.09

An advertising self-regulatory group announced Thursday it has upheld a decision challenging advertising claims made by Chicago-based Wm. Wrigley Jr. Co. for its Eclipse gum.

In 2008, Wrigley launched a new version of Eclipse touting the gum's ability to kill germs that cause bad breath, courtesy of a new ingredient called magnolia bark extract. But Wrigley's main U.S. gum rival, Cadbury Adams USA, complained about Wrigley's assertions to the Council of Better Business Bureaus' National Advertising Division.

In April, the ad review body ruled that claims of Eclipse's germ-killing prowess were not fully backed by scientific evidence. Wrigley in turn said it was confident of scientific support for its claim, and lodged an appeal to the Better Business Bureau's National Advertising Review Board.

Thursday, the review board essentially concurred with the decision of the National Advertising Division, recommending that Wrigley "avoid stating or implying that it has been scientifically proven" that magnolia bark extract in Eclipse kills or helps kill germs that cause bad breath.

The review board agreed, though, with the original decision last spring that Wrigley can advertise that there's "emerging evidence" of magnolia bark extract's ability to kill germs that cause bad breath.

"Wrigley agreed to take the panel's recommendations into consideration in future advertising," the ad review board said.

Wrigley couldn't be immediately reached for comment.

The Better Business Bureau's advertising regulatory group has no enforcement powers, but it can alert federal trade regulators to spurious claims. Once an appeal is denied, advertisers don't often continue making claims.

Wrigley Advised to Freshen Eclipse Ad Claims

2009-11-25T08:15:00.001-08:00

Source: Brandweek – 11.24.09

Assertions made on behalf of the gum brand draw fire from NARB

The National Advertising Review Board has recommended that Wrigley make radical changes to advertising for its Eclipse Gum. After reviewing the company's research and marketing messages, the New York-based group has advised that the gum maker discontinue the claim that "most other gums just mask bad breath."

NARB also suggested that Eclipse ads should avoid stating or implying that it has been scientifically proven that the magnolia bark extract in the gum kills or helps kill germs that cause bad breath. Additionally, NARB said Wrigley shouldn't state that Eclipse's new formulation works better than the original. (NARB is the appeals division of the National Advertising Review Council, the ad industry's self-regulatory system.)

Cadbury Adams USA challenged its competitors' claims with the National Advertising Division. It took exception to ad copy that said, among other things: "Now Eclipse contains a natural ingredient, scientifically proven to help kill the germs that cause bad breath" and "Most other gums just mask bad breath. We kill the germs that cause it." Energy BBDO is Eclipse's lead agency.

The NAD sided with Cadbury. Wrigley appealed the NAD's decision with NARB, which has now rejected that appeal.

At best, the organization said, Wrigley can advertise that there is emerging evidence of magnolia bark extract's ability to kill germs that cause bad breath.

"Wrigley respectfully disagrees with the NARB's findings and stands behind the scientific research regarding Eclipse gum with magnolia bark extract," said Wrigley representative Jennifer Jackson Luth. "We do appreciate the time and support shown by the NARB during this self-regulatory process and will consider the panel's recommendations for future advertising."

Wrigley spent $50 million advertising the Eclipse brand last year (excluding online), per Nielsen. For the first nine months of this year, it spent $17 million.

Vladeck Speaks at NAD Annual Conference

2009-10-05T08:53:00.000-07:00

Headline: FTC Plans Effort To Educate Kids About Advertising
Source: Media Post – 10.05.09

David Vladeck, the new director of the Federal Trade Commission's Bureau of Consumer Protection, put attendees of the BBB's National Advertising Division Conference on notice on Monday: The commission is reviewing practices and standards on a number of fronts, particularly around advertising to kids.

The commission, said Vladeck, plans substantial efforts this year and next around food marketing to children and adults; Internet selling techniques; endorsements and testimonials; green marketing and privacy matters; and better coordination with sister agencies, especially the Food and Drug Administration.

The actions include a new campaign directed at tweens next year that will comprise advertising, interactive elements and in-school and library programs aimed at teaching kids how to recognize and analyze advertising.

Vladeck says the reasons to address marketing to kids -- particularly around food -- are more compelling now because of the rising number of incidences of obesity, cardiovascular disease and diabetes.

"Progress has been made because of self-regulatory initiative from the Council for Better Business Bureaus (of which the NAD is part) but more needs to be done," he said. Two weeks ago, he said, the FTC served notice to get approval from the Office of Management and Budget to do a major food marketing study that will allow a direct comparison of marketing spend, profile data and market data between the new study and one done two years ago.

The multimedia ad campaign, directed at kids ages 8 to 12, will include a Web site featuring a game that teaches core ad literacy concepts. The game will also be on mobile devices. In-school curricula developed with Scholastic magazine will deal with why, where, and how commercial messages are constructed and placed, per Vladeck.

"The distinction between ads and other content is often blurred to the point that even older kids may not get when they are being pitched," he said. "The goals are to teach kids to be aware of ads, analyze and understand them, and the benefits of being an informed consumer." He added that the effort focuses on three key questions: "Who is responsible for these ads?" "What does the ad say?" "What does it want me to do?"

Dan Jaffe, executive vice president, government relations for the Association of National Advertisers, tells Marketing Daily that a number of campaigns from the Ad Council have been extremely effective, but the key is how they target their audience with actionable proposals that are also meaningful.

He also argues that such a campaign should talk about regulations that exist now. "Advertising is one of the most regulated areas, and we have made major steps on a self-regulatory basis. It is important to tell kids they have to look at all messages critically, but it is no longer a caveat emptor world we live in. It is a highly regulated world and one with tremendous incentives for advertisers."

As for the new guidelines for endorsements, Jaffe argues that the FTC guidelines are implied by the existing rules and that in many cases, disclosures should be taken as prima facie statement of fact around cases where there is a wide variation of results, not merely an advertiser's attempt to seek a safe harbor.

Jaffe, therefore, sees the removal of safe harbor disclaimers as a danger for advertisers. "The question is what [the FTC] is going to consider as a trigger for [legal action] around disclosures. In a lot of areas, it could be very difficult. What has to be kept clear is that these are guidelines, and a lot of how this will play out will be when people make claims."

Per Vladeck, the FTC is also increasing efforts around environmental-marketing claims. He said the agency has launched a green initiative that includes a review of its own "green guides" and law enforcement around false or deceptive green claims. The FTC is also linking with the FDA and Office of Consumer Litigation of the Department of Justice to enforce rules around marketing of conventional food products; dietary supplements and over-the-counter drugs.

Steve Cole: Thanks to a Mentor and Champion of Advertising Self-Regulation

2009-09-25T09:09:00.000-07:00

How the Soon-to-Be-Retired CBBB CEO Changed the Industry

By Pete Blackshaw
Published in Advertising Age 9/24/09

Mentorship should be on Maslow's hierarchy. It's the ultimate need to help us succeed, and I've been very lucky to have several great mentors in my short business career so far.

I learned the ropes of politics and policy with Art Torres, then one of California's top-ranked Hispanic elected officials. At P&G, I was fortunate to develop a close mentee relationship with then-CMO Denis Beausejour, someone I still lean on for professional and personal advice. And in the past couple of years, I've had the most extraordinary opportunity to learn and work hand-in-hand with a tireless champion for both consumer interests and business self-regulation, Steve Cole, CEO of the Council of Better Business Bureau.

After nearly 22 years at the Better Business Bureau, Steve's retiring from the CBBB. As CEO, he led 128 national bureaus that accredit more than 400,000 businesses and satisfy tens of millions of annual consumer "service requests." He also administered all of the CBBB's advertising self-regulation work, from the National Advertising Division (NAD) and CARU (the Children's Advertising Review Unit) to the recently established Children's Food and Beverage Advertising Initiative, as part of a decades-old, internationally recognized alliance with the advertising industry to promote truthful advertising.

Indeed, we're all losing a mentor.

Steve and I met about eight years ago during my passionate, arguably naive crusade to turn PlanetFeedback.com into "the Better Business Bureau on Steroids." We connected on mutual passion for driving win-win, trusted relationships between consumers and businesses.
Two years ago, Steve invited me to serve on the Council of Better Business Bureaus' Board, and shortly thereafter, to serve as board chair. I still have that role, and it's given me no shortage of excuses to tap his knowledge, experience base and personal lessons accumulated over the years.
The best leadership lessons come from tough, sometimes seemingly impossible situations. The venerable 100-year old BBB faces many challenges, from managing "digital disruption" to keeping pace with the new age of consumer control, where "complaint escalation" has taken on radically new meaning.

Steve met the test, and then some. He modernized the BBB's branding, worked with his broad membership to put a smart five-year strategic plan in place, and brought consistency and new offerings to the web services of over 100 bureaus. He actively supported the BBB's delicate transition from "satisfactory" scores to actual letter ratings. Several years ago, along with incoming CEO Steve Cox (then CMO), he introduced the expansion of the successful International Torch Awards ceremony to recognize global leaders in marketplace trust.
Impact on self-regulationBut here's the point I really want to underscore -- especially to this audience. Steve Cole has done more than just about anyone to promote advertising self-regulation since American Advertising Federation's (AAF) Howard Bell pioneered the system in the early '70s.

"Steve is a historic leader who never sought a place in history. He took a CBBB teetering and wobbling and figured out how to make it relevant, survive and grow at a time when that seemed truly difficult -- if not downright impossible," said Bob Liodice, CEO of the Association of National Advertisers (ANA).

For nearly 20 years, he served as general counsel of the NARC board -- which sets policies and procedures for advertising industry self-regulation -- and influenced countless operational decisions that have led to continued success of the programs. He drafted the decisions of the National Advertising Review Board, the self-regulatory system's appellate unit.

As CBBB CEO, he expanded the role and scope of self-regulation. He recruited Lee Peeler, a veteran FTC lawyer, to lead the programs; solidified the CBBB's relationship with other key organizations; successfully pushed for a NARC board expansion to include other industry leaders such as the DMA, IAB and ERA (Electronic Retailing Association); strengthened the success of existing programs; and introduced success new ones.

"He agreed to champion one of the most complex self-regulatory issues in advertising history: self-regulation of online behavioral advertising," Mr. Liodice said. "While still a work in progress, Steve's unrelenting support led to the adoption of self-regulatory principles that will become the backbone of an accountability system that will be leveraged throughout the U.S. and, likely, around the world."

When children's food advertising was under attack, Steve helped recruit former FTC consumer-protection rock star Jodie Bernstein to lead a historic groundbreaking effort to revise the historic CARU guidelines, and create an innovative self-regulatory program to address concerns about the marketing of food and beverage products to children. This model is so successful that it has been implemented in Canada, the EU and a number of other countries.

Recently, he's helped facilitate important, timely dialogue with groups such as the Word-of-Mouth Marketing Association (WOMMA) that are pushing for self-regulation in word-of-mouth and social media.

In fairness, Steve Cole didn't check off every box. Indeed, the nation's oldest trust organization is far from out of the woods. But he pushed against the grain, endured some grief along the way, and got an impressive amount of work done -- effectively laying the foundation for his capable and committed successor, Steve Cox.

Importantly, he did so while staying true to his "consumer" passion and sensibility. We all owe Steve Cole a debt of gratitude. His "ROI" is not as crystal clear as a click-through rate, but trust me, we're all benefiting from his industry mentorship.

NARB Alum Andy Fletcher to Keynote NAD Annual Conference

2009-09-24T16:24:00.000-07:00

The NAD Annual Conference, October 5-6 at New York City's W New York Hotel, 541 Lexington Ave. Expert speakers will explore the legal trends in green marketing, the challenges and opportunities of user-generated content, Federal Trade Commission focus on testimonials and endorsements, key issues in claims substantiation and the use of surveys. The conference will provide attendees with practical information to enhance their ability to navigate the industry’s self-regulatory forum.

Keynote speakers, David Vladeck, Director of the Bureau of Consumer Protection, Federal Trade Commission, and Andy Fletcher, CEO of Atlanta-based Fletcher Martin

Andy is an active participant and frequent speaker in the advertising industry. Advertising columnist Stuart Elliot said in a recent New York Times article, “Anyone needing a refresher course in public speaking ought to have been in the audience for the presentation by Andy Fletcher.”

NARB Panel Report #152 / Extra Strength Excedrin (Summary)

2009-09-16T10:46:00.000-07:00

(09/16/2009)
Appeal of NAD Final Decision Regarding Advertising for Extra Strength Excedrin

Wyeth challenged Novartis in regards to its television advertising claims for Extra Strength Excedrin. NAD determined that Novartis did not provide sufficient substantiation for the express claim that Extra Strength Excedrin starts to relieve headache pain in fifteen minutes, and recommended that Novartis either discontinue or substantially modify that claim. Novartis appealed NAD’s recommendation with respect to this express claim.

Novartis provided a proprietary clinical study that tested Extra Strength Excedrin to determine its efficacy in relieving pain intensity for episodic tension-type headaches, and argued that the clinical trial was sufficient to support an “onset of action” claim that Extra Strength Excedrin started to work on a pharmacological basis after fifteen minutes.

The panel agreed with NAD’s finding that the proffered substantiation did not provide support for the reasonably conveyed message that typical consumers can reasonably expect a reduction in headache pain within fifteen minutes of taking Extra Strength Excedrin.

The panel recommended that Novartis discontinue its claim that Extra Strength Excedrin “Start[s] relieving your headache in just fifteen minutes,” or modify the claim to accurately reflect the results of its clinical study in a manner that does not state or imply that typical consumers can reasonably expect a reduction in headache pain within fifteen minutes after taking Extra Strength Excedrin.

The advertiser, Novartis, agreed to follow NARB's recommendation.

Board Members for Panel # 152

Michael Scherb (Chair)
Director, Corporate Advertising and Branding
PSE&G

Mark Wolf
Director, Market Research
Guardian Life Insurance Company of America

Andreas Combuechen
CEO, CCO
Atmosphere BBDO

Bonnie Drewniany
Associate Professor
University of South Carolina, School of Journalism

Council of Better Business Bureaus Names Stephen A. Cox as President and CEO

2009-09-03T07:32:00.000-07:00

ARLINGTON, VA - September 2, 2009 – The Board of Directors of the Council of Better Business Bureaus has named Stephen A. Cox as President and CEO. Founded in 1912, BBB is the nation's oldest trust organization, with 124 BBBs serving communities across the U.S. and Canada. BBB evaluates and monitors more than four million local and national businesses and charities, and more than 400,000 businesses are now BBB Accredited Businesses. The organization also oversees advertising industry self-regulation efforts, from children's marketing standards to direct response advertising, and enjoys a mutually supportive relationship with more than 200 corporate partners.

Cox has served as the Council’s Vice President of Communications since July 2006. He will assume leadership of the organization effective October 8 - at the conclusion of BBB’s International Assembly in Boston - replacing Steven J. Cole, who is retiring after 22 years with the Council, first as General Counsel and Corporate Secretary, and for the past four years as President and CEO.

“Steve Cox is an outstanding choice to lead our organization as we approach our 100th year anniversary of driving marketplace trust. I've seen him in action, and he gets results,” said Pete Blackshaw, Chairman, Council Board of Directors. “In partnership with outgoing CEO Steve Cole, he's already laid an impressive foundation for BBB's digital future, launched outstanding new products and services, and has elevated our standing and stature across the marketplace. His ethics are without peer and I'm excited to work with Steve to lay a foundation for BBB's next 100 years.”

Cox has grown Council communications activities into a multi-faceted operation. His efforts have been instrumental in the success of the ongoing BBB system re-branding effort, launched in October 2007, and in redesigning the BBB International Torch Awards program, now a signature marketplace trust-focused national event held annually in Washington, DC.

“Business and charity leaders, and consumers and donors all inherently understand the requirement for trust in today’s marketplace – trust serves as both a moral and economic foundation,” said Cox. “Together, in serving with our BBB leaders, National Advertising Review Council partners, BBB Wise Giving Alliance team and corporate partners, I look forward to continuing our work in addressing the challenge of building a marketplace where buyers and sellers can trust each other.”

Prior to joining the Council, Cox worked for Booz, Allen, Hamilton – a global strategy and technology consulting firm. In 2005, he retired from the United States Marine Corps after 23 years. During the 1990-1991 Gulf War he received the Bronze Star Medal for valor in combat during the liberation of Kuwait City. Following the events of 9/11, he served as a Marine Corps spokesperson for the first deployment of U.S. forces to Afghanistan. He was then assigned as the first U.S. spokesperson for terrorist detainee operations at the detention facility in Guantanamo Bay, Cuba, and later deployed as the first U.S. spokesperson for Coalition counter-terrorism operations in the seven-country Horn of Africa region. In his last assignment, he served as the Director of Community Relations for the Marine Corps, at the Pentagon in Washington, DC.

For the past six years, Cox has also worked with the William Randolph Hearst Foundation’s United States Senate Youth Program. Annually, he leads a team in managing daily operations and mentoring more than 100 of the nation’s top high school students while coordinating activities with staffs at the White House, Supreme Court, Senate and Departments of Defense, State and Justice.

Cox is originally from Memphis, TN and a graduate of the University of Tennessee at Chattanooga. He has also earned a Master’s Degree in Marketing and a Master of Business Administration degree from the University of Maryland (University College).

Outgoing President and CEO Steve Cole has enjoyed a distinguished career with the Council since 1987. With the rise of the Internet in the mid-1990’s, he is credited with spearheading the creation of BBBOnLine, the organization’s trustmark program that continues to provide today’s online marketplace with support in identifying and engaging trustworthy businesses. As President and CEO, Cole led the BBB system through far reaching organizational changes, including a revitalization and repositioning of the BBB brand; the creation of an integrated network of BBB Web sites that are now receiving more than four million unique visitors per month, and growing rapidly; the development and implementation of BBB Accreditation for those businesses meeting and upholding BBB Standards for Trust; and the establishment of a unique self-regulation program for the marketing of food and beverages to children.

“I am extremely proud of what we’ve accomplished, and am confident that Steve Cox will lead BBB to many future successes. BBB is needed more than ever, and is in position to play the leading role in advancing trust in the rapidly changing marketplace," said, Cole. “The opportunity to work with thousands of passionate professionals across the BBB system and with our corporate partners and colleagues at the National Advertising Review Council on so many important projects, programs and initiatives has been an honor and privilege.”

Letter from the Chair

2009-07-28T13:37:00.000-07:00

By Howard Bell

It is my great pleasure to present the NARB Online Newsletter. We are producing this newsletter in an effort to keep our board and supporters better informed about the activities of the self-regulatory system. In the NARB Online Newsletter you will find the following sections:

News
This section we will give you the latest information about the National Advertising Review Board and the advertising self-regulatory system as a whole.

Panel Update
This section will cover the latest appeal requests and summarize recently published NARB Panels Reports and will list the NARB members who served as panelists.

NARB Member Corner
In this section you can expect to find information concerning NARB members. This is also where NARB members will have the opportunity to contribute to the Newsletter and speak to the rest of the board about issues regarding advertising self-regulation and the NARB.

NARB Board List
In this section we will publish the current board list of the NARB.

Event News
This section will cover upcoming events that would be of interest to those who have a stake in advertising self-regulation.

Voluntary industry compliance is a corner stone of successful self-regulation. The NARB represents the peer review part of this voluntary system and it is important that you are well informed and involved in the process. We trust that this publication will help to serve that purpose while at the same time enriching your experience as NARB board members. I would welcome your comments and suggestions that would help this publication be of maximum service.

NARB Panel Report #151 / Promise Brand soft spread (Summary)

2009-07-01T10:28:00.000-07:00

(07/01/2009)
Appeal of NAD Final Decision Regarding Advertising for Promise® Brand Soft Spreads

GFA Brands, Inc., manufacturer of Smart Balance® soft spreads, challenged Unilever in regards to advertising claims for its Promise® brand soft spreads. The challenged advertisements included (1) “Cardiologist Endorsed” on product packaging, (2) “Promise® Brand of soft spreads endorsed by 9 out of 10 cardiologists.”, (3) “Promise® spreads recently conducted a national survey of over 320 cardiologists and found that 9 out of 10 would endorse Promise® brand of soft spreads for their patients, based on nutritional information.”, (4) “4 out of 5 cardiologists prefer Promise® Buttery Spread over Smart Balance® Butter Spread for their patients” and (5) “Cardiologists significantly prefer for their patients the nutritional profile of [Promise® Brand Spreads] to that of [Smart Balance® Brand Soft Spread].”

NAD found that Unilever’s survey was materially flawed because it did not provide the cardiologists with sufficient information about the products, and the “cardiologist endorsed” claim was not substantiated because there was no evidence that the cardiologists surveyed actually endorsed the products to their patients in the daily course of their practice.

Because complete product ingredients were not provided in the survey of cardiologists conducted by Unilever, the panel agreed with NAD and determined that the proffered survey did not meet the level of substantiation required for “doctor endorsed” claims, and can not be used to support any medical opinions expressed as preferences, endorsements, or recommendations.

The panel recommended that Unilever discontinue claims that cardiologists endorse or prefer Promise® soft spreads or individual Promise® soft spread products based on the survey relied upon by Unilever in support of those claims.

The advertiser, Unilever, agreed to follow NARB’s recommendation.

Board Members for Panel # 151

Abby Elu (Chair)
Manager, Learning & Development Global Advertising Services
Campbell Soup Company

Elaine Lawson
Interactive Marketing Leader
MasterCard Worldwide

Andreas Combuechen
CEO, CCO
Atmosphere BBDO

Michael Jeary
President & CEO
Partners + Jeary

Andrew J. Strenio Jr. (absent)
Partner
Siddley Austin LLP

Castrol Loses Appeal on Sludge Claims

2009-06-24T18:17:00.000-07:00

Source: Lube Report Blog
By George Gill

BP Lubricants agreed to withdraw its challenged advertising for Castrol GTX motor oil after a National Advertising Review Board panel recommended it discontinue a variety of sludge protection superiority claims in all media.

BP America had appealed the findings last October of the National Advertising Division of the Council of Better Business Bureaus, which – following a challenge by Pennzoil-Quaker state of sludge protection claims in Castrol GTX advertising – had recommended BP America modify or discontinue the disputed advertising claims.

“We at Pennzoil are extremely pleased that the NARB not only upheld the original NAD decision that Castrol discontinue its ’57 percent better’ claim in television advertising, but also went further and determined that this superiority claim and the claim that Castrol GTX passed the ‘industry's toughest sludge standard’ should be discontinued in all media,” Luis Guimaraes, general manager for Shell Lubricants’ North America marketing, told Lube Report. “We trust that Castrol will act promptly in discontinuing the challenged advertising claims.”

The NARB announced the panel’s decision yesterday. “While we respectfully disagree with the panel’s conclusions, as a strong supporter of the self-regulatory process, BP Lubricants will withdraw the challenged advertising,” BP said in its statement responding to the panel’s decision. The record before the NAD and the panel established that engine sludge should be an important concern for consumers, BP stated, and that car makers and many others in the industry believe minimum standards for sludge protection don’t go far enough. “We are disappointed that the panel felt that the substantiation we placed in the record in this matter was insufficient, and that we did not adequately anticipate the need to provide extensive substantiation concerning the characteristics and relevance of the Mercedes Benz M111 [sludge] test, which is part of the European ACEA industry standard,” the company stated. “We had believed that issue was not in contention.”

According to the panel’s decision report, the record does not establish that the M111 is the “industry’s toughest sludge standard.” The panel said that in addition to relying on a European industry standard in advertising directed to North American consumers, BP America did not submit evidence to establish the M111 test was “tougher” than all other industry sludge standards.

The panel also noted that BP America relied on the results of two tests conducted under M271, a proprietary Mercedes-Benz protocol, on different dates – once on Castrol GTX, and once on a competitive Pennzoil product.

“The information submitted by BP America did not demonstrate that the M271 test on which it relies is an appropriate basis for comparative sludge protection claims,” the appeals panel stated. “The test procedures and protocols are not publicly available, and thus NAD was not able to evaluate the test. In addition, there is no published reference data with respect to the M271 test, no correlation to other tests, no field correlation, no published repeatability or reproducibility statistics, and no way to evaluate the statistical significance of the test results.”

An Appeal to the Ad Regulator's Reason

2009-06-05T07:33:00.000-07:00

Source: Campaign (UK) -- 06.05.09

So, your ad's been banned. What do you do next? Anything? The current review of the Codes of Advertising Practice should offer advertisers a new appeals process, Brinsley Dresden argues. The American Revolution was triggered by a simple principle: no taxation without representation. When the Advertising Standards Authority took over responsibility for broadcast advertising regulation in 2004, advertisers also took over the responsibility for funding it, by way of its own taxation system: the 0.1 per cent broadcast advertising standards board of finance levy. Unlike a normal tax, the levy is voluntary. And in the vast majority of cases, advertisers accept that the ASA reaches the right conclusions about complaints against ads. But if the current review of the Advertising Codes of Practice is to avoid its own Revolution, we need a new system of representation for advertisers whose ads have been banned.

COUNTING THE COST OF AN AD BAN Every year there are a handful of hard cases where advertisers feel that the paper-based process has failed them - such as Oasis, Swiftcover and Courage - with severe consequences, including wasted production and media costs. They may also incur substantial losses if they cannot advertise for another year, because their annual advertising budget has been exhausted, with a commercial that they intended to run for a year only running for a few weeks, or even a few days. The current economic climate simply serves to underline the imperative of certainty. For the ad agencies concerned, there can also be a fatal strain on the client relationship if a campaign is banned in short order. In order to maintain the support of advertisers and provide the fairness and transparency that should be integral to a self-regulatory system, there should be a new appeal system. For a precedent, look no further than the US and the National Advertising Review Board, which takes appeals from decisions made by the National Advertising Division.

WHY THE SYSTEM NEEDS FIXING Change is needed because television commercials have already been through the rigours of the Clearcast prior approval process, both at script stage and as completed films. Advertisers, then, have a legitimate expectation that their commercials will be able to withstand any regulatory challenge. The problem is compounded by the very restrictive terms of reference used by the current system of independent review. Under the system, an advertiser must show the independent reviewer that there has either been a substantial procedural flaw or that there is new evidence. According to the ASA annual report, no advertiser managed to satisfy those criteria for a banned TV ad last year. In theory, an advertiser could then apply to court for judicial review In practice, however, this is rarely a practical option. Not only is it slow and expensive, but the bar is set very high, with an advertiser having to show that the adjudication was one that no reasonable body could have made. In reality, the issues are usually far more subtly nuanced. The advertiser may simply believe the ASA reached the wrong conclusion, not that it was completely unreasonable. The problems are compounded by the fact that the risks faced by advertisers have grown considerably in recent years. The one-stop shop makes it easier for consumers, competitors and non-governmental organisations to complain, and that is no bad thing. The ASA has also done a good job of raising its profile and educating the public. And various legal developments often leave the ASA as the only recourse against comparative ads. Other problems may stem from the ASA's lack of a clear standard of proof for substantiation; the confusion between the requirement that an advertisement is not misleading and a requirement that it is accurate on any interpretation; and conflicting policies adopted by different regulators. Some recent decisions bear this out. In September 2008, an ad for ExxonMobil was banned because of a claim that liquefied natural gas is a comparatively clean fuel, but did not expressly state that this is by comparison with other fossil fuels, rather than renewable energy sources. On a careful contextual analysis of the individual wording of the script, the complaint could be justified. But on the broader question of whether anybody would be misled or confused, the case against the commercial was rather weak. Even more contentious was the decision in October 2008 to ban the commercial for the Coca-Cola fruit juice drink Oasis, featuring the 'Cactus Kid' character, because it allegedly condoned teenage sex. The commercial had been carefully scrutinised and approved by Clearcast, as usual. However, shortly after its first airing, the commercial was pulled by the ASA and then banned, having attracted a total of 32 complaints from members of the public. This was simply one regulator coming to a different view from another about very subjective questions of taste and decency. But if there is to be a new appeal system to meet the needs and expectations of advertisers, it must not be open to abuse, and it must not impose a disproportionate burden to the ASA's already over-stretched resources.

TIME FOR A NEW APPEAL SYSTEM Initially, an independent 'gatekeeper' would need to decide if there was a substantial likelihood of a different decision on appeal, to filter out frivolous or vexatious appeals. There would need to be a time limit for lodging an appeal and the commercial would also need to be withdrawn pending the appeal. The advertiser would need to specify the reasons for the appeal and pay an application fee to defray some or all of the ASA's costs. Applications would have to come from the advertiser's chief executive or equivalent. Further negative publicity and additional costs should also deter frivolous applications. A panel of adjudicators, separate from the ASA council, could be selected from among a wider standing group of individuals from advertisers, agencies and members of the public. Although the panel members would need to be independent of the ASA, it could include retired ASA council members and draw on their experience. Written briefs could be submitted and circulated in advance by the ASA, the advertiser, the complainant and Clearcast, setting out their respective responses to the appeal. The appeal itself would comprise a round table meeting to review the issues. By allowing oral discussion between the parties and their experts, it should be possible to come to a more informed conclusion that commands the confidence of all the parties. Following the all-parties meeting, the decision would be reached by the panel and its own advisors, if any. A draft decision with a rationale would be circulated for comment in advance of its final adoption. Although the ASA may be concerned about the time and expense of an appeal system, it would act as a pressure valve, strengthening the system overall and helping to ensure the continuing support of advertisers who bankroll self-regulation through the BASBOF levy. The code review consultation, which ends on 19 June, is a once-in-a-generation opportunity to lobby for changes to the self-regulatory system, and the ad industry should not spurn it. After all, we don't need an American Revolution, just a very British tweak.

Brinsley Dresden is a partner specialising in media brands and technology at Lewis Silkin.

NARB PANEL Report # 150 / Castrol GTX (Summary)

2009-04-16T10:36:00.000-07:00

(04/16/2009)
Appeal of the NAD Final Decision Regarding Advertising for
BP Lubricants' Castrol GTX Brand Motor Oil

Pennzoil-Quaker State Company challenged BP America Inc’s superiority claims. The challenged advertisements that made claims about Castrol GTX motor oil, including “Superior Sludge Protection. 57% better than the leading 5W-30. Tests prove it” and “Superior Sludge Protection Among Leading Oils* [*In 5W-30 and 10W-30 grades].”

NAD found that the information submitted by BP America did not provide a reasonable basis to support its unqualified claims that Castrol GTX provided “superior sludge protection” and was “57% better” than the leading competitive oil. NAD also found that BP America did not provide a reasonable basis to support its claim that Castrol GTX passed “the industry’s toughest sludge standard.” NAD further found that the challenged advertisements reasonably implied that Castrol, because of its superior sludge protection capacity, can provide longer engine life than its competitors.

NAD recommends that BP America discontinue its “superior sludge protection” and “57% better” claims, or any other sludge superiority claims based on the submitted M271 tests. The panel also recommends that BP America discontinue its claims that Castrol GTX passed the “industry’s toughest sludge standard.”

Given the amount of time that has passed since the initiation of this challenge, as well as the significant deficiencies in the substantiation offered in support of the claims, the panel hopes that BP America will promptly discontinue the challenged advertising claims in all media.

Board Members for Panel #150

Dr. Jan LeBlanc Wicks (chair)
Professor & Graduate Coordinator
University of Arkansas

Beau Fraser
Managing Director
The Gate Worldwide

Amy Fuller
Group Executive
MasterCard Worldwide

Bill Stabile
Senior Director, Brand & Marketing Communications
Siemens Corporation

P&G Lawyer Calls Upon Ad Industry to Work at Defending Self-RegulationAt ANA Conference

2009-03-10T15:15:00.000-07:00

NEW YORK (AdAge.com) -- A top lawyer for Procter & Gamble called upon industry executives to work harder than ever to defend self-regulation of the ad business at a gathering of top advertisers today.

Speaking about the tough economic environment and increased government involvement in business affairs, Deborah Platt Majoras, VP-general counsel at P&G, said the ad business has to tout that it has been responsible and doesn't need additional oversight.
The current business environment -- one in which market failures have prompted government bailouts and heightened government oversight -- is leading to a more skeptical outlook from policymakers about self-regulation. '

"The road ahead is not going to be easy, but we are not helpless," said Ms. Majoras, who, prior to joining P&G served as chairman of the Federal Trade Commission from 2004 to 2008. "The industry has been far more responsible than we get credit for. It's time that we backed up rhetoric with facts," she said.

An optimistic start
Ms. Majoras, the keynote speaker at the Association of National Advertisers' Advertising Law and Business Affairs Conference, kicked off the conference on an optimistic note this morning. As is the case with most events these days, attendance for the two-day affair in New York is down. Nearly 150 executives registered for the conference this year, a 25% drop-off from the 200 or so who registered in 2008, organizers said.

Ms. Majoras expressed confidence that the FTC, under new leadership in Jon Leibowitz, is willing to give self-regulation a chance. At the same time, the ball is in the industry's court, she said. Advertisers shouldn't wait for mandates to be handed down from regulators, but rather take it upon themselves to be more responsible.

Among other things, everyone must step up efforts to advertise at a high level of effectiveness, only make claims that can be substantiated, and ensure protection of consumers' privacy. Advertisers should be thinking about making disclosures about their marketing practices, regardless of whether or not the FTC requires them.

"We can't foster trust with consumers now if they feel like they've been had," Ms. Majoras said. The online space is one in which advertisers must be particularly cautious -- and transparent -- because consumers feel a unique sense of ownership over the internet.

Making the case
Ms. Majoras, referencing Rance Crain's recent column in Ad Age, "Self-Regulation Shouldn't Be Advertising's Best-Kept Secret," stressed that steadfast believers in self-regulation must be prepared to "make the case," and should think about ways to better articulate and get the message out there.

She also reiterated a few talking points for the audience, including that the ad industry's system of regulation is flexible, prompt and responsive; it benefits from the accumulated judgment of industry experts; there is an inherent buy-in for the system, which makes it effective; and the cost burden falls upon industry participants rather than taxpayers.

Self-Regulation Shouldn't Be Advertising's Best-Kept Secret NARC's Fine Work Needs to Noticed

2009-02-23T15:02:00.000-08:00

Advertising Age
by Rance Crain

As if you needed another sign that times are tough, here's a fairly reliable measure: The number of cases handled by the advertising industry's best-kept secret -- self-regulation -- are on the rise.
Last year the National Advertising Division of the Council of Better Business Bureaus handled 214 cases, up 22% from 2007. And in 2008 ad challenges, in which one advertiser challenges a competitor's claim, rose 31% to 81 cases.
Why the increased activity? It's a deadly fight for share of market out there, and in down times advertisers tend to revert to hard-hitting comparative advertising. NAD's purpose is to substantiate these kinds of attack ads, and it can do it faster and cheaper than litigation can.
The Federal Trade Commission seems to like the idea of letting advertisers settle their own disputes. When the National Advertising Review Council, the body that sets the policies and procedures for the NAD to enforce, started 38 years ago, then-FTC Chairman Bob Pitofsky wasn't an early convert.
"If the truth be known," he said 10 years ago, "there was some skepticism about how the whole thing would work. The FTC had been burned time and time again by unkept promises of self-regulation by other industries. But this group has proved the skeptics wrong. Today, advertising has the best self-regulatory system of any industry in the country."
The outgoing chairman of the FTC, William Kovacic, is also a fan. But the current crop of FTC commissioners don't seem as convinced, although they seem somewhat willing to give self-regulation a chance. In issuing guidelines for online behavioral advertising, FTC Commissioner Jon Leibowitz said the industry needs to do a better job of "meaningful, rigorous self-regulation, or it will certainly invite legislation by Congress and a more regulatory approach by our commission."A joint industry task force quickly seized on that statement as an endorsement for self-regulation, and said it supported FTC's goal of a "comprehensive and effective self-regulatory program."
But in spite of rhetoric, advertising self-regulation still remains "relatively unknown and underappreciated by the industry it serves," in the words of C. Lee Peeler, president-CEO of the National Advertising Review Council. By "underappreciated," he means that self-regulation has a "low profile in comparison to its value" to the advertising industry.
Even financial support comes from a relatively small group. There are about 150 corporate supporters, 50-plus law firms, 10 or fewer ad agencies and a dozen associations, Mr. Peeler told me.
So why is NARC the best-kept secret in the business? "That's the puzzle," he said. "When self-regulation is working well, it goes relatively unnoticed. The work of NAD is really very workmanlike."
An exception, Mr. Peeler said, is the children's food and beverage initiative, which a recent survey shows has "pretty good recognition among parents and very strong support from children's food and beverage advertisers."
The Children's Advertising Review unit, as it's called, gets support from about 100 children's advertisers. But when the NARC strategic planning group reached out to key stakeholders last year, they were consistently told there were relatively low levels of awareness of NARC and its programs among advertisers, and especially among agencies.
I guess we're part of the problem because Mr. Peeler said the trade press doesn't do a very good job of covering case settlements or other NARC activity. Mr. Peeler, who worked for the FTC for 33 years before joining NARC in 2006, gently lifted us off the hook when he said that "we don't have winners and losers, but participants and supporters of the process."

Advertising Industry Self-Regulation Expands Board of Directors

2009-01-29T15:21:00.000-08:00

CEOs of DMA, ERA, IAB Join Board of National Advertising Review Council

New York, NY – Jan. 27, 2009 - The National Advertising Review Council today announced expansion of the NARC Board to include Julie Coons, President and CEO of the Electronic Retailing Association (ERA), John A. Greco, Jr., President and CEO of the Direct Marketing Association (DMA) and Randall Rothenberg, President and CEO of the Interactive Advertising Bureau (IAB).

The appointments of Ms. Coons, Mr. Greco and Mr. Rothenberg expand the NARC Board, which sets policies and procedures for advertising industry self-regulation, to 11 members from eight members.

The move represents the first expansion of the Board since the organization was founded more than 30 years ago.

“The advertising industry has changed dramatically since NARC was created,” said Eric Mower, NARC Board Chair and President and CEO of Eric Mower and Associates, Syracuse, NY. “The ERA, DMA and IAB are strong, effective supporters of self-regulation. The participation of Ms. Coons, Mr. Greco and Mr. Rothenberg will significantly strengthen the board’s ability to build on the success of our self-regulatory programs and provide important perspective on the many new issues faced by the advertising industry.”

"We've been actively involved in encouraging self-regulation since 2004, when ERA and NARC
developed a self-regulatory program for direct-response marketers. Through our Electronic Retailing Self-Regulation Program (ERSP), we have developed an ongoing partnership with the NARC and consider it the gold standard for ethical advertising practices. It is an honor and privilege to join the board and I look forward to working with my fellow board members to ensure the continuation of a healthy and vibrant self-regulatory community,” said Ms. Coons.

"In a digital economy, many of the distinctions between direct marketing and advertising have
diminished and it is important for all sectors in these communities to work together in promoting ethical business practices,” said Mr. Greco. “I'm delighted to join the NARC Board and look forward to advancing the principles of self-regulation."

“As we look to the future of advertising, it is clear that interactive marketing is playing an
increasingly prominent role and it is essential that we continue to demonstrate to consumers and the government our commitment to the highest standards of ethical conduct,” said Randall Rothenberg. “I look forward to working with my fellow NARC board members to build on the outstanding tradition of self-regulation that they have established.”

"NARC programs have an outstanding record of success and are regularly cited by the government and business community as a model of effective self-regulation,” said C. Lee Peeler, President of NARC. "This expansion comes at an opportune time and strengthens our ability to raise the profile and broaden the role of self-regulation in promoting high standards of ethical business conduct."

NARB Panel Report # 149 / Blue Buffalo (Summary)

2009-01-14T10:35:00.000-08:00

(01/14/2009)
Appeal of NAD Final Decision Regarding Advertising for Blue Buffalo Pet Food

Hill’s Pet Nutrition challenged Blue Buffalo Pet Food in regards to the advertisements’ comparative claims. The challenged claims included (1) claims that BLUE pet food had no animal by-products, (2) claims implying that BLUE pet food had superior nutritional value (relating to nutrients and antioxidants) as compared to leading pet food brands, and (3) claims that Blue Buffalo pet food had ingredients “you put on your own dinner table” and that a consumer can feed BLUE pet food to pets “like you feed your family.”

NAD found that Blue Buffalo did not substantiate the implied claim that BLUE pet food had superior nutritional value (relating to nutrients and antioxidants) as compared to leading pet food brands.

NAD recommends that Blue Buffalo discontinue its claim of no animal by-products – for products that contain meat meal, fish meal and/or animal liver – unless (1) the basis for the no animal by-product claim (e.g., AAFCO standards) is prominently stated and sufficiently explained to overcome a reasonable implication that the product does not contain non-meat ingredients that consumers would reasonably consider to be animal by-products, and (2) there are no proximate claims that product ingredients are similar to what humans eat.

Board Members for Panel # 149

Dr. Jan LeBlanc Wicks (Chair)
Professor & Graduate Coordinator
University of Arkansas

Eric Andrews
Vice President ,WW Demand Generation
IBM Corporate Marketing

Abby Elu
Manager, Learning & Development Global Advertising Services
Campbell Soup Company

Michael Scherb
Director, Corporate Advertising and Branding
PSE&G

Steve J. Farella
President, CEO
TargetCast TCM

NARB Panel Report # 147 / Shark Infinity (Summary)

2008-03-06T10:31:00.000-08:00

(03/06/2008)
Appeal of the NAD Final Decision Regarding Advertising for Shark Infinity NV30 & NV31 Vacuum Cleaners

Dyson, Inc. challenged Euro-Pro Operating, LLC for their superiority claims. The challenged advertising appeared on product packaging and also in web-site, online video and print advertising. The challenged advertising included claims with regard to its suction and superior cleaning.

NAD found that Euro-Pro had provided a reasonable basis to substantiate its superior cleaning claims, and Dyson has appealed that finding to this panel.

NAD determined that Euro-Pro provided a reasonable basis to substantiate the challenged claims relating to whether the Shark Infinity “Never Loses Suction” and whether it provides “Better/Superior” cleaning.

NAD recommends that Euro-Pro discontinue its comparison of the “Never Loses Suction” attributes of the Shark Infinity to other vacuum cleaners unless it clearly identifies the vacuum cleaners or category of vacuum cleaners to which the comparison is made. The panel also recommends that Euro-Pro discontinue quantifiable claims about suction loss of other vacuum cleaners unless it has sufficient substantiation for those claims.

Board Members for Panel #147

Dr. Jan LeBlanc Wicks (chair)
Professor & Graduate Coordinator
University of Arkansas

Cheryl Greene
Brand and Strategy Advisor
Deutsch, Inc.

David May
Vice President, Global Marketing
Goldman, Sachs & Company

Andrea MacDonald
President & CEO
MacDonald Media, LLC

Abby Elu
Manager, Learning & Development Global Advertising Services
Campbell Soup Company

NARB Panel Report # 146 / Osteo Bi-Flex (Summary)

2008-01-31T10:23:00.000-08:00

(01/31/2008)
Appeal of NAD Final Decision Regarding Advertising by Rexall Sundown’s Osteo Bi-Flex

As part of NAD’s routine monitoring program, NAD requested substantiation for certain claims made by Rexall Sundown, Inc. (“Rexall”) for its Osteo Bi-Flex dietary supplement.

The panel recommends that Rexall discontinue use of “Double Strength” and “Triple Strength” descriptors on product packaging and in other advertising unless those terms are qualified to indicate that they refer to the level of key ingredients in each individual caplet, or the number of caplets that comprise the recommended daily serving of these ingredients, in a manner that does not imply greater product performance or efficacy.

The panel also recommends that Rexall remove its claims that the Boswellia serrata extract in 5- LOXIN® is 10 times more concentrated than typical Boswellia serrata extracts unless those claims are presented in a context that does not imply that the increased concentration results in increased product performance or efficacy.

Board Members for Panel #146

R, Michael Hoefges (Chair)
Assistant Professor and M.A.lJ.D. Coordinator
University of North Carolina at Chapel Hill,
The School of Journalism and Mass Communication

Amy Fuller
Group Executive
MasterCard Worldwide

0, Andrew Jung
Sr. Director, Advertising and Media Services
Kellogg Company

Andreas Combuechen
CEO,CCO
Atmosphere BBDO