stinkThe National Advertising Division of the Better Business Bureau (NAD) recently recommended that Boehringer Ingelheim, manufacturer of an anti-flatulence product called “DulcoGas Maximum Strength” discontinue incorporating the “maximum strength” claim in connection with the DulcoGas product.

The claim was challenged by a competitor, Novartis Consumer Health, Inc., which argued that the claim referred to the strength of one tablet of the DulcoGas product. Boehringer argued the claim in fact referred to a cumulative dose of four tablets over the course of a day.  The NAD agreed with Novartis, finding that reasonable consumers would likely infer that one dose of DulcoGas Maximum Strength provides at least as much of the active ingredient as any other anti-flatulence product on the market, and/or the maximum amount permitted by the FDA.

In fact, each tablet contained only 125 mg of the active ingredient, and this dosage level was less than the amount in other tablets on the market and less than the maximum daily dose of 500 mg set by the FDA. The NAD also noted the potentially wide variation in consumer use of the product and thus was not persuaded that consumers would presume the “maximum” reference specifically related to four doses taken during one day.

The NAD also rejected Boehringer’s argument that competing products also use the “maximum strength” designation to describe tablets that contain only 125 mg of the active ingredient, and instead concluded that such products deviated from the norm.   The NAD also noted that advertisers cannot defend claims that are misleading simply by pointing to competitors that make similarly misleading claims.

Boehinger might have prevailed had it included a prominent disclaimer stating that “Maximum Strength” was equivalent to four doses per day.  Of course, it could have avoided the issue entirely had it simply increased the amount of the active ingredient in DulcoGas to exceed those of its competitors.  I imagine Boehinger had its reasons, but I am not in the fart pill business, and can not comment on what they may have been.

Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.