Advertisers who want to tout the comparative advantages of their products have a number of options for framing those comparisons. For example, they can compare their products to specific products, they can compare their products to defined categories of products, or they can more vaguely compare their products to “regular,” “ordinary,” or “other” products. Although many companies think that making a vague comparison is a safer option, a new NAD decision demonstrates that it’s usually not the case.
Telebrands advertised its Atomic Beam flashlight by making various comparisons to “regular” and “ordinary” flashlights. For example, a TV commercial compares the brightness of the Atomic Beam to a “regular” flashlight with a “feeble” light output. And a chart on the company’s website compares the Atomic Beam to “ordinary” flashlights across five attributes, with the Atomic Beam coming out on top. Although some of ads don’t specify what a “regular” or “ordinary” flashlight is, others explain that “the comparison is based on a base model LED flashlight of a major manufacturer.”
Energizer argued that the ads were misleading, for a number of reasons. For example, the company argued that because the basis of comparison is not clear, reasonable consumers will interpret “ordinary” flashlights broadly to mean all flashlights priced similarly to the Atomic Beam. In reality, Telebrands had only tested against one flashlight and, although some of the comparisons may have been true against that specific flashlight, the comparisons were not true against many popular flashlights in the same price range.
The NAD agreed that the ads were misleading, noting that one message reasonably conveyed by the ads is that the Atomic Beam “is brighter and more durable than most flashlights, with features not found in most flashlights. Another reasonable takeaway is that ‘ordinary’ and ‘regular’ are a reference to the best-selling flashlights, or to flashlights sold at similar or lesser price points than the Atomic Beam.” Tests that compared the Atomic Beam to a single flashlight that was neither very popular nor very typical in terms of performance were not sufficient to support the broad claims.
As this decision demonstrates, vague comparisons often create more problems than they solve because they could be read to apply to many products. Not only does that increase your substantiation obligations, it increases the number of competitors who might want to challenge you.