Posted by: Scott Shaffer
February 04, 2010
Topic: Marketing and Advertising Law

When it comes to the rules of advertising, many remain confused by the legal doctrine that while a statement can be literally true, it still can be considered false or deceptive. Three advertisers learned recently this lesson the hard way in the last few weeks when the National Advertising Division of the Better Business Bureau (NAD) recommended that certain of their marketing claims, while literally true, should be discontinued.

In the first case, Heartland Sweeteners, LLC marketed its Ideal sweetening product as "more than 99% natural", and there was no claim that such a claim was actually false. However, Merisant Company, the maker of the rival Equal product, filed a challenge with the NAD claiming that although true, the 99% claims were misleading consumers because nearly 80% of the product's sweet taste was derived from the fractional percentage of artificial ingredient, a chemical called sucralose. Relying on Food and Drug Administration policy stating that the use of "natural" means nothing artificial or synthetic has been added, the NAD recommended that Heartland discontinue the "99% natural" claim and avoid conveying the message that Ideal was different from its competition because it was either natural or more natural. Heartland vowed to appeal the ruling, and its CEO Ted Gelov told the website FoodNavigator-USA.com that the NAD had "got it wrong completely" and that his company's advertising is entirely accurate.

The NAD also ruled against two other advertised claims that were literally true, both of which involved nutritional supplements touted as "doctor recommended." The Quten Research Institute markets a CoQ10 supplement designed to reduce the amount of glucose in the bloodstream. The Council for Responsible Nutrition filed an NAD challenge covering a number of advertising claims. With respect to the "doctor recommended" claim, Quten said that it had several doctors who recommended its product. The NAD was not satisfied.

Similarly, the marketer of Viviscal, a dietary supplement promoting healthy hair, actually submitted biographies of distinguished physicians who recommended the product. That was too not enough, said the NAD, because "doctor recommended" claims must be substantiated by "well-conducted physician surveys which base their conclusions on their actual experience and their daily practice." It is not enough for an advertiser to respond that the "doctor recommended" claim is supported by endorsements from particular doctors. Even worse for Viviscal, the NAD found that while its efficacy claims were supported by scientific studies, the scientific studies were conducted only on men, and therefore the use of a woman's picture in the advertisement

The NAD is a self-regulatory group whose rulings are not binding, but if disobeyed, can result in fast-track referrals to the Federal Trade Commission for investigation and potential prosecution. To learn more about NAD challenge, click here.

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