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If a review site ranks your product as the top in a category, can you advertise that you’re “number 1” in that category? The answer may not be as simple as it seems, and two NAD cases – one from three years ago and one from last month – demonstrate why companies can’t simply rely…

For centuries, monsters have been vilified in countless books and films. Although the bad reputation that monsters have earned is generally well-deserved – they do, after all, frequently hurt people, destroy things, and otherwise cross the line of what’s socially acceptable – it’s important to keep in mind that some monsters are actually a lot…

If you want to advertise that your product performs better than a competitor’s product, you’re likely going to have to run tests to substantiate that claim. In some cases, there may be industry standard tests that could help take the guess work out of designing a protocol. In absence of an industry standard test, though,…

Twilio advertises that its customer data platform is the “#1 CDP” and discloses that the claim is based on 2020 market share, as measured by the International Data Corporation. Adobe challenged the claim, arguing, in part, that the 2020 IDC Report doesn’t reflect the current landscape and, even if it did, that Twilio’s disclosures were…

The halfway point of 2022 finds NAD digging deep on supplement substantiation and looking closely at whether product names convey misleading claims.  Here are highlights from the past quarter and links to our posts from earlier this year.  Enjoy!

The Proof Is In the Testing (NAD Case No. 7067):  NAD recommended that Dakota Nutrition, Inc., discontinue a broad range of claims relating to the presence of elderberry in the company’s Elderberry Capsules and Elderberry Gummies products, including claims that the products even contain elderberry or provide benefits commonly associated with elderberry.  NAD also recommended that Dakota Nutrition discontinue use of the term “elderberry” in the product name given that Dakota Nutrition was unable to provide a reasonable basis that its products contain elderberry, based on HPLC and HPTLC testing provided by the advertiser.  This case is a reminder of the importance of robust ingredient and finished product testing, particularly as many companies have shifted to alternate suppliers during the pandemic to meet consumer demands.

Mmmm…Chicle (NAD Case No. 7077):  NAD also went deep into ingredient testing in a challenge filed by global confectioner Perfetti Van Melle USA, Inc., against Mazee, LLC, maker of Glee Gum.  Mazee advertised Glee Gum as, among other things, an all-natural, eco-friendly chewing gum made from chicle, a tree sap that Mazee claimed is sustainably harvested from the rainforests of Central America.  To support its claims that Glee Gum contained chicle, Mazee provided information from its supplier stating that the gum base is 94% chicle tree sap (the other 6% consists of candelilla wax and natural citrus acid), along with the results of Carbon-14 testing by Beta Analytic.

Perfetti rebutted that the supplier information did not show that chicle is an ingredient because the CAS Registry Number it listed to identify “Chicle Tree Sap” is not the CAS Registry Number of chicle or any other known chemical substance.  Further, the challenger argued that the results of Mazee’s Carbon-14 tests do not provide any information as to whether the gum base in Glee Gum contains chicle, but only purport to provide information regarding whether the carbon in Glee Gum is plant or fossil-based.  Perfetti further attacked Mazee’s claims with analysis from two experts who concluded that Glee Gum did not exhibit typical chicle-related characteristics and, instead, their analysis suggested the presence of synthetic materials.   Based on this, NAD recommended that the advertiser discontinue claims that the gum base of Glee Gum is “made with chicle.”…
Continue Reading Mid-Year Check-in on NAD Food, Supplement and Personal Care Product Cases

My law firm picture was taken on a Tuesday morning, but I’ve always lamented that the photographer wasn’t available to take it on a weekend, which would have given me a better opportunity to showcase my Saturday night hair. In case you think that’s something only I worry about, take note that questions related to…

NAD recently issued a decision in a challenge that Zillow brought against Apartments.com involving a humorous campaign that featured Jeff Goldblum. The decision covers a lot of ground, including some issues that may be unique to the rental market. For today, though, we’ll focus on an issue that spans industries and comes up frequently. Specifically,…

This month’s update kicks off spring with a Best in Show throwback ad comparing dog flea and tick medication, pivots to claims for survivalist ready-to-eat meals (don’t even try to act like you saw that coming), highlights FDA’s recently-issued voluntary recall guidance, provides a food court update on the latest ingredient class actions and cleans…