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
NAD Explores When Companies can be Responsible for Third-Party Reviews
If a third-party writes a good review of your product – or, even better, rates it as one of the best – can you link to that review? A new NAD decisions suggests that the answer may not be as easy as people think.
Routine Wellness makes haircare products, including a shampoo and conditioner that
NAD Finds Dark Patterns in a Rewards Program
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
FTC Reminds Advertisers to Keep AI Claims in Check
A recent post on the FTC’s Business Blog notes that although there may be disagreement about what “artificial intelligence” or “AI” is, those terms are being used in marketing campaigns, and the FTC worries that some advertisers “won’t be able to stop themselves from overusing and abusing them.” To help those advertisers out, the FTC’s
NY Attorney General Proposes Price Gouging Rules
Last week, as severe weather hit the country, price gouging laws were triggered ranging as far as California to Kentucky. And as we’ve previously reported, complying with the varied state price gouging laws can be tricky, especially where they use undefined terms like “excessive” or “exorbitant” to define price gouging. Last week the New York Attorney General announced proposed rules designed to strengthen enforcement of New York’s price gouging law, which was last updated in 2020 to grant the Office of the Attorney General (or “OAG”) rulemaking authority. The rules would provide some needed clarity to the existing law, but would also impose new restrictions.
The OAG noted three important considerations that they factored in when crafting the rules:
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NAD’s Molson Coors Decision: The Watering Down of the Objective Claim Standard
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.”
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NAD Finds Advertiser Can’t Support Aspirational Net Zero Claims
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.
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FTC and State AGs Can Continue Joint Case Over Fake Reviews
Fake reviews continue to be a hot topic in consumer protection. In 2022, we reported that six states and the Federal Trade Commission filed a lawsuit against Roomster – a platform through which people can find rooms and roommates – along with its owners, alleging that they had “inundated the internet with tens of thousands of fake positive reviews to bolster their false claims that properties listed on their Roomster platform are real, available, and verified.” At the same time, the regulators announced a settlement with an individual who allegedly sold Roomster many of the fake reviews.
Roomster then filed a motion to dismiss and in early February, the court denied the motion. While the denial is no surprise, there are some key takeaways from the order.
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Influencer’s Long Lashes Could Raise Ad Law Issues
Mikayla Nogueira is a 24-year-old beauty influencer with over 14 million followers on TikTok. At last count, that’s more than the number of followers we have at Ad Law Access, so she must be doing something right. (Or perhaps we’re doing something wrong by neglecting our readers’ beauty needs, but that’s a topic for another
FTC Challenges Half-Baked “Made in USA” Claims
Instant Brands advertises that its Pyrex glass products are “Proudly Made in USA” and as “American as Apple Pie.” For many years, it appears that Instant Brands’ claims complied with the requirements set forth in FTC’s Made in USA Labeling Rule. But when the COVID-19 pandemic hit and consumers who were stuck at home turned