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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.…

Continue Reading Advertising Lessons from the Survival Industry

NAD recently announced two decisions involving Biossance’s Squalane & Marine Algae Eye Cream. Neither of the decisions involved claims made by the company itself, though. Instead, the decisions involved mentions of the eye cream made by third parties – Sephora and Hello! Magazine – and NAD generally focused on the question of whether the product…

If you want to advertise that something is the “best,” do you need substantiation? Or can you rely on a puffery argument? Although the answer depends on context, one paragraph in a recent NAD decision seems to conflict with longstanding precedent.  

NAD has frequently held that whether a superlative like “best” requires substantiation depends…

Last year, we wrote about a challenge that NAD had initiated against various green claims made by the American Beverage Association (or “ABA”). NAD found that several of ABA’s claims – including claims that “our bottles are made to be remade” and “we’re carefully designing our bottles to be 100% recyclable” – were substantiated, but…

For $9.99 per month, Pier 1 offers Pier 1 Rewards, a loyalty program that includes benefits such as a 10% discount on all purchases and free shipping and returns on eligible items. Until recently, when a consumer added an item to a cart, the company would automatically also add the Pier 1 Rewards membership to…

Last week, NAD released a decision in a case involving a Molson Coors ad that has received more press attention than any NAD decision in recent memory. In the ad, athletes are celebrating the completion of a difficult workout by opening a can labeled “Extremely Light Beer” and pouring the liquid over their heads while an announcer says “Light beer shouldn’t taste like water. It should taste like beer.”

Anheuser-Busch filed a challenge using NAD’s Fast-Track SWIFT process, arguing that the videos falsely disparage Michelob Ultra and other light beers by claiming that consumers find them to taste like water. Molson Coors pointed out that no competitors were named and the tagline was simply “a subjective opinion about what beer should and should not taste like, which cannot be objectively proved or disproved.” In other words, mere puffery “because it is not sufficiently specific and material enough to create expectations in consumers.” But NAD didn’t agree. It deemed Coors’ claim measurable and objective and found it to be unsupported by evidence.

Hmmm. Do consumers really expect Molson Coors to have a well-designed test establishing that some unnamed light beers taste like water? Such jabs have long been a staple of American advertising. Isn’t this akin to Wendy’s iconic “Where’s the beef” campaign? Or Dunkin Donuts’  slogan, “friends don’t let friends drink Starbucks”? These taglines were never controversial. And yet, one can only imagine the conversations that might ensue if these slogans crossed NAD’s desk today. Wendy’s might be asked to provide to-the-millimeter measurements of competitors’ burger-to-bun ratios. And Dunkin might be asked to supply a robust, geographically diverse, well-conducted survey of three hundred “friends.”…

Continue Reading NAD’s Molson Coors Decision: The Watering Down of the Objective Claim Standard

If you tell your friends about your new year’s resolutions, odds are that most of those friends won’t push you for too much detail on how you plan to achieve your goals. But if those friends work at NAD, you might expect some pointed questions about whether you have a solid plan, whether you’ve started to work on that plan, and whether your goals are realistic. They’re not going to let you get by on good intentions alone.

As we’ve noted in previous posts, NAD has held that “when aspirational claims are tied to measurable outcomes, an advertiser must be able to demonstrate that its goals and aspirations are not merely illusory and to provide evidence of the steps it is taking to reach its stated goal.” In several recent cases involving aspirational claims – including cases involving claims by Chipotle and Georgia Pacific – NAD found that the advertisers had provided enough evidence.

In a case announced last week, NAD came to a different conclusion, and advertisers that make aspirational claims about their environmental efforts should take note. The decision covers a lot of ground, but here are some of the key themes.…

Continue Reading NAD Finds Advertiser Can’t Support Aspirational Net Zero Claims

Money-back guarantees can often be subject to detailed terms and conditions. When advertising those guarantees, clients often ask us how much has to be disclosed in an ad itself, versus how much can be disclosed on a landing page. Although there isn’t a bright line rule, a recent NAD challenge sheds light on what practices…

If you follow our blog, you already know that there have been a number of significant developments in the world of advertising law over the past 12 months. In this post, we highlight ten of those developments and consider what they might mean for the future.

  • Dark Patterns: Any practices that could manipulate or mislead
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