Appeal of NAD Final Decision
Regarding Advertising by CenturyLink, Inc. for
High-Speed Internet Service
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:
between your house and our network.”
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.
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
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
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
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
Tuesday, August 2, 2011
NARB Panel Report #166 / Time Warner Cable, Inc.
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)
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
Friday, July 22, 2011
NARB Panel Report #165 / The Sherwin-Williams Company Dutch Boy Refresh Paint
Appeal of NAD Final Decision
Regarding Advertising by The Sherwin Williams Company for
Dutch Boy Refresh™ Paint
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.”
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.
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.
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
Tuesday, February 23, 2010
NARB Panel Report #155 / Debbie Meyer Greenbags (Summary)
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.
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.
Wednesday, September 16, 2009
NARB Panel Report #152 / Extra Strength Excedrin (Summary)
(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
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
Wednesday, July 1, 2009
NARB Panel Report #151 / Promise Brand soft spread (Summary)
(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.
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
Thursday, April 16, 2009
NARB PANEL Report # 150 / Castrol GTX (Summary)
(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
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
Wednesday, January 14, 2009
NARB Panel Report # 149 / Blue Buffalo (Summary)
(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
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
Thursday, March 6, 2008
NARB Panel Report # 147 / Shark Infinity (Summary)
(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
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
Thursday, January 31, 2008
NARB Panel Report # 146 / Osteo Bi-Flex (Summary)
(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
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
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