My Patriot Supply (or “MPS”) and 4Patriots both make long-term survival food kits and related products. If a natural disaster strikes, if AI-powered bots wreak havoc on humanity, or if you just want to binge-watch your favorite shows and tune out the rest of the world, these companies have your back. But they don’t have each other’s backs.
Last year, MPS challenged various claims that 4Patriots made about its food kits at the NAD, and this year, 4Patriots filed its own challenge against MPS. Although much of what’s in NAD’s decisions may not be relevant to companies outside of this niche market, the most recent decision address at least three issues that regularly come up across a broad range of industries.
Made in USA
The MPS website included various claims that products were “Made in USA” alongside patriotic imagery. Because 4Patriots sells similar products, it knows that some of the ingredients in the MPS kits are likely to be imported. NAD summarized the requirements for “Made in USA” claims – which we’ve also summarized here – and recommended that MPS qualify its claims with a clear and conspicuous disclosure explaining that some of the ingredients in its kits are imported.
False Sense of Urgency
4Patriots argued that MPS creates a false sense of urgency by suggesting that sales are about to expire, when that’s not true. MPS provided evidence showing that various sales ended as advertised, and NAD agreed that those examples were not misleading. However, 4Patriots submitted examples of two sales that allegedly continued past their advertised end date.
NAD noted that it “is well-established that when an advertiser represents an offer to be for a limited time, that offer must, in fact, be available for only a limited time, and a reasonable amount of time must pass before the advertiser can make similar claims again.” NAD recommended that MPS “take appropriate steps to ensure that its time-limited claims are in fact limited.”
Because the MPS site includes a higher percentage of 5-star reviews than other sites have for MPS products, 4Patriots suggested that MPS manipulates reviews. MPS explained that it posts all verified reviews, as long as they don’t contain offensive language, regardless of whether they are positive or negative. It suggested that some negative reviews on other sites may be related to products sold by unauthorized resellers, who may be selling outdated or sub-standard products.
NAD did not appear to take a side on the dispute about whether MPS had manipulated its reviews – something it likely couldn’t determine based on the record – but it did recommend “that when the advertiser’s website appears to publish all product reviews, that the advertiser post all reviews on its website, subject to its policy preventing reviews with vulgar or offensive language.”
There aren’t any surprises in the decision, but there are a few points worth noting:
- Although the FTC has been the main source of Made in the USA complaints (like this one), complaints can also come from competitors. That’s particularly true in cases where competitors use similar ingredients or components that are sourced from similar suppliers and have a good idea of how you operate.
- Creating a sense of urgency can be an effective (and lawful) marketing technique as long as your claims are accurate and sales end when you say they will. But, as we’ve posted before, a false sense of urgency can lead to complaints from consumers, regulators, and competitors.
- The authenticity of reviews has long been a concern of the FTC and other regulators. (Click here, here, and here, for example.) Competitors and consumers are likely to bring more challenges as well, though proving fraud could be difficult without discovery (something that isn’t available in an NAD proceeding).
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