The NAD recently analyzed whether Petmate had adequate substantiation to support claims that certain cat litter pans had “built-in antimicrobial protection” and that they could “inhibit bacteria growth.” Although the decision is most directly relevant to companies that make antimicrobial claims, it also contains information that’s relevant to any company that uses tests to substantiate claims.

There’s a lot going on in this case, but here are five key points from an advertising law perspective:

• Petmate argued that product testing was not necessary because the Microban ingredient in its litter pans had been tested. The NAD disagreed, noting that just because a product is treated with an EPA registered pesticide does not, by itself, substantiate a product performance claim. Testing on the product is necessary.
• The NAD reiterated that in order to make a “health-related claim,” such as the antimicrobial claims on the cat litter pans, an advertiser must have “competent and reliable scientific evidence.” This generally requires well-controlled studies with results that are statistically significance at the 95% confidence level.
• Petmate submitted the results of a test conducted pursuant to an industry standard test designed to assess antimicrobial activity. The NAD was concerned, however, that the standard was designed to assess that activity on textile Although Petmate argued that the test was also valid for plastic materials, such as cat litter pans, the NAD was not convinced.
• The NAD observed that the tests were conducted by Petmate’s supplier of Microban, the antimicrobial ingredient in its litter pans. Although the NAD prefers independent third-party tests, it will accept in-house testing as long as there is “evidence that adequate controls and safeguards were implemented to prevent bias.” Here, the NAD did not find such evidence.
• Even if the NAD had accepted the tests, it noted that results must translate into a meaningful benefit for consumers. Here, the NAD found that there was no evidence demonstrating that consumers would perceive a difference due to the inclusion of the antimicrobial agent in the Petmate litter pans.

Keep in mind that if you make antimicrobial claims, you also need to worry about EPA regulations. While companies that manufacture and sell “treated articles” (with only non-public health claims) do not have to obtain independent registrations for products that incorporate an EPA-approved antimicrobial, they do have to comply with the conditions of the registration for the EPA-approved additive, including the types of claims that can be made and the products/materials in which the additive can be used. In addition, EPA regulations restrict how treated articles may be advertised. For example, antimicrobial claims should be printed in type of the same size, style, and color, and “should not be given any greater prominence than any other described product feature.”

For more analysis on EPA-related issues, visit our new Kelley Green Law blog.