ADventures in Law

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Baby monitors are having a moment at the National Advertising Division (NAD) after multiple cases were announced over claims that monitors incorporated artificial intelligence technology – see <a href="https://bbbprograms.org/media/newsroom/decisions/horizon-ai" target="_blank" rel="noreferrer noopener">here</a> and <a href="https://bbbprograms.org/media/newsroom/decisions/dorel" target="_blank" rel="noreferrer noopener">here</a> – but as we watch and listen to learn new tricks, it is important to remember the ABCs as well – or, in this case, the 123s.

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This was a competitor challenge brought in the 20-day SWIFT track program to claims that Nanit Smart Baby Monitors were the No. 1 baby monitor or the No. 1 smart baby monitor. The maker of Owlet challenged this claim. NAD started with the reminder that unqualified No. 1 claims resonate with consumers and that such claims typically should be supported with unit-share data. Owlet submitted Circana data showing its Dream Sock device was higher in sales in both dollars and units for the past 12 months, as well as in recent shorter time frames.

Nanit argued that the Owlet product wasn’t really a baby monitor at all but a medical device that measures a baby’s heart rate and oxygen levels. It argued that when looking at sales of smart devices unlike Owlet that track a baby by video – not just audio – and are more than $99, it is indeed the best seller. Nanit argued that consumers would understand this to be the competitive set, as lower-priced audio-only devices are far more prevalent and devices like Dream Sock are far more expensive and monitor various baby vital signs.

To find the relevant category, NAD looks to third-party publications, manufacturer advertising and how reasonable consumers would understand a claim. Here NAD noted that the terms “baby monitor” and “smart baby monitor” are used broadly. Therefore, consumers could interpret those categories to include any device or smart device that monitors a baby, including simple audio-only devices and more-complicated medical devices. NAD recommended Nanit discontinue the current claim or qualify it to make clear how it was defining the category in which it claimed to be No. 1.

Other NAD cases provide additional guidelines for such claims. Not only does the category need to be clearly explained, be one that consumers would recognize and be supported by reputable data <a href="https://www.jdsupra.com/legalnews/supporting-we-re-number-one-nad-5647457/" target="_blank" rel="noreferrer noopener">using unit sales</a>, but the data also needs to be current. If different data sources tell different stories but both are reputable, identifying the source is important. And a practical reminder so you don’t stay up at night worrying about your claims: If the category is competitive and market shares change, consider carefully whether including a No. 1 claim on packaging, where the lead times for changes are costly and slow to implement.

How to End Up on Top When Claiming to Be No. 1