NAD recently issued a decision in a challenge that Bath & Body Works (or “B&BW”) brought against Goose Creek that touches upon a number of common issues advertisers face. Although the decision covers a lot of ground – B&BW challenged a combination of 18 express and implied claims – in this post, we’re going to focus on a few issues related to comparative claims against unnamed competitors.

Can claims against unnamed competitors be considered claims against specific competitors?

Goose Creek advertised that its “body care products are clean, cruelty-free, vegan, non-GMO & dermatologist tested” and encouraged consumers to “avoid the harmful chemicals found in other body care products.” B&BW argued this falsely implied that their products were harmful, even though Goose Creek never mentioned B&BW (or any other company) by name.

The first question is whether generic claims against “other products” can be considered to be claims against specific products. The answer is “yes.” NAD noted that “it is well-established that an advertiser need not mention a particular competitor specifically in order for the claim to be considered comparative to a rival company” and determined Goose Creek’s ads could convey a claim against B&BW’s products.

Notably, in other cases in which NAD has come to a similar conclusion, NAD often based its decision on the fact that the challenger was a “market leader,” such that consumers would likely assume the claim referred to the challenger. This decision doesn’t address whether NAD thought the B&BW held that status, so it’s not clear whether they are simply following previous precedent or expanding on it.

Ultimately, NAD held that Goose Creek couldn’t substantiate its broad claim. NAD scrutinizes “denigrating claims to ensure they are truthful, accurate, narrowly drawn, and do not falsely disparage a competitor’s product.” In this case, although two ingredients found in B&BW products could allegedly cause irritation or allergic reactions, Goose Creek went too far by calling them “harmful.”

How should a company substantiate claims against unnamed competitors?

Goose Creek also advertised that its candle fragrances “beat the competition” and are “so much stronger than other store brands.” In evaluating this claim, NAD started with the premise that “when an advertiser makes a comparative claim against all other competitors, it is well-established that they must support that claim against the top 85% of the competitive market.” (Click here for another recent decision on point.)

In this case, it appears that Goose Creek may not have tested against any specific competitors. Instead, the relied on a clinical study on emissions from burning candles in which the authors asserted that “most candle companies use a 5% fragrance load in their products.” Goose Creek also provided test results from three fragrances of Goose Creek candles showing they carried a 10-14% fragrance load.

NAD thought the substantiation was insufficient for two reasons. First, the study’s authors didn’t cite any authority to support their assertion of the typical fragrance load. Because NAD dismissed the study in only one sentence, there isn’t much detail, but this shows that simply relying on a third party study isn’t always enough. Second, NAD noted Goose Creek’s tests on the fragrance loads of three of their candles were not enough to substantiate a claim for all of their candles.

More to Come

Some advertisers assume that making a claim against unnamed competitors is easier or less risky than naming a specific competitor, but this case shows that’s not always true. Not only can you still be challenged by a competitor, but your substantiation requirements can be more expansive.

In our next post, we’ll look at another issue NAD considered in this case: disclosure requirements for endorsements.

NAD Decision Provides Guidance on Claims Against Unnamed Competitors