ADventures in Law

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We love endorsement cases, and we love puffery cases. <a href="https://bbbprograms.org/media/newsroom/decisions/church-dwight" target="_blank" rel="noreferrer noopener">NAD recently gave us two in one, looking at a claim for TheraBreath mouthwash</a> made by the brand’s founder, Dr. Harold Katz: “It’s a better mouthwash. I guarantee it.” Two issues here were inherently related: Would consumers recognize Dr. Katz as the founder as opposed to an unaffiliated impartial dentist giving an endorsement? And either way, would calling TheraBreath a “better mouthwash” be a puff or a comparative superiority claim?

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First NAD reminded us that if there is no discussion of attributes, simply saying a product is better will most likely be a puff. NAD said this was even more clearly the case when the statement is made by the founder of the brand, who is making a boastful statement showing pride in the product he created. In some of the spots, there were mentions of product attributes, including that it kills 99.9 percent of germs. NAD found these were sufficiently separated from the better mouthwash and guarantee tagline.

NAD found, however, that the connection between Dr. Katz and Therabreath was not clear and that his material connection as the founder needed to be better spelled out. TheraBreath argued that <a href="https://www.therabreath.com/pages/about-us" target="_blank" rel="noreferrer noopener">the Dr. Katz origin story is featured prominently in its advertising</a> and on its packaging. Dr. Katz is shown wearing a lab coat with his name and the TheraBreath logo with his own signature below the tagline “Doctor Formulated.” In the context of a challenged TV ad, NAD found that these indicia of a material connection were too small to be noticed and appreciated. And not all reasonable consumers viewing the ad may have also read and appreciated the origin story from the product packaging. NAD concluded that “if Dr. Katz’s status were properly disclosed, consumers would reasonably perceive the claim ‘It’s a better mouthwash’ as a self-laudatory statement of opinion rather than an objective statement of superiority and the ‘guarantee’ a further sign of creator bluster and bravado – especially in the absence of references to competitors or other comparative context in the challenged advertising.”

For those survey geeks among our readers, the case had an interesting discussion about a consumer perception survey that NAD rejected, largely concluding that the differences in responses between the test and control ads were so slight as to suggest the control was not well-designed. But the overall takeaway for any brand using its founder in advertising is to make sure the spokesperson’s connection to the company is crystal clear. But if done correctly, there is perhaps more leeway for a finding of puffery when an owner or developer makes boastful statements about the product.

Just What the Doctor Ordered: NAD Clarifies When a Doctor Endorsement Is a Puff vs. a Claim