ADventures in Law

Home | ADventures in Law

We often say advertising law is more art than science and the key is looking at ads in context through a lens that approximates the “reasonable consumer.” But there are some things we generally think of as well settled – such as how long a product can be “new,” or when a product is #1. Recently NAD gave us not one but two cases that provide some nuances to think about when substantiating top brand claims. These cases are juicy (<a href="https://bbbprograms.org/media/newsroom/decisions/force-factor" target="_blank" rel="noreferrer noopener">involving beets</a>) and pesky (involving <a href="https://bbbprograms.org/media/newsroom/decisions/pet-iq" target="_blank" rel="noreferrer noopener">flea collars</a>), so we will attack them in back-to-back blogs. This one being the #1 blog of the week addressing #1 claims, and by #1 here, we mean the first, not necessarily the best of the two. We will save that determination for you, Dear Readers.

core/paragraph

NAD has noted that #1 claims – be they #1 brand, #1 ingredient or #1 product – are powerful to consumers. These claims tell consumers they can’t go wrong going with the thing more consumers select. And brands have forever proudly promoted their #1 status. We remind clients that while powerful, leading with such claims is a heavy burden, particularly on packaging, because the substantiation needs to be regularly refreshed – generally annually, but perhaps more often if significant new entrants or other market changes disrupt the status quo. It is not a claim, in other words, that you can set and forget.

But first the key principals: #1 brand claims are generally understood to be market share claims, and generally the best support for such claims is based on current, reliable third-party unit data rather than sales data. One product might be more expensive than another, so it boasts more revenue comparatively, but looking at the number of units sold is often referred to as the truer “apples-to-apples” comparison. (As a sidenote, NAD has generally said a company can support a #1 claim with sales data but needs to include the basis for the claim in a clear disclaimer.)

On to beets. We are talking about not the roasted or boiled kind but those in dietary supplements. The Human Power of N Company, maker of the SuperBeets® line, challenged claims made by Force Factor, maker of Total Beets®, that they were “America’s #1 Best-Selling Beets Brand” and the “#1 Beets Brand in America.” There was no dispute that SuperBeets was the #1 best seller in units. But Total Beets mounted many interesting arguments as to why its claim was nonetheless supported. This was a case in the 20-day SWIFT track, but the data involved was more complicated than in your run-of-the-mill speedy NAD case.

Total Beets argued that you can’t accurately measure popularity based on unit sales, because each company sold its beet supplements in multiple different forms and sizes, such that dollar sales were the only way to really look across the different product lines to get a good comparison. NAD found that while there are differences in product form, package configuration and pricing, SuperBeets had not presented evidence compelling enough to demonstrate that those differences make unit sales an inappropriate measure of how frequently consumers purchase the competing brands or that dollar sales would better reflect the message conveyed by the challenged #1 claims. So the presumption in favor of using unit sales is alive and well. There was an older case where NAD found dollar sales were a better metric for a #1 claim, but in that case (involving lint rollers) the price differences were minimal and one company sold substantially more smaller-sized packages – a unique fact pattern, to say the least.

SuperBeets also argued the unit data used from third-party retail sources was outdated. While Total Beets acknowledged some of the data has not been refreshed, it pulled current data and satisfied NAD that its claim was still valid.

One interesting twist in the case: NAD found that the claim “#1 best-selling” would be understood to be based on unit sales data. NAD went on to say that the basis for the formulation “#1 beets brand” claim was not so clear, and recommended that SuperBeets disclose that such a claim was based on unit sales. For advertisers who like short and sweet claims without fine print, this case suggests NAD may be parsing these cases more finely than perhaps has been done in the past, and in some cases looking for disclaimer of the basis even if you have current reliable unit sales data.

We Got the Beet – but Which Brand Is Really #1?