Advertising Claims: The Truth is Not Enough

Proctor & Gamble, maker of Crest 3D White Whitestrips, recently filed an unfair advertising practice claim against rival Colgate with the Better Business Bureau’s National Advertising Division (NAD), a self-regulatory body that many advertisers turn to to resolve such claims.

The case revolved around an advertising campaign for Colgate’s Optic White Toothpaste; a campaign that included claims that the toothpaste contained the “same whitening ingredient as strips.”  P&G demanded that Colgate discontinue its “Same Whitening” claim, because it conveyed a message to consumers that the peroxide in the toothpaste provides a significant tooth-whitening benefit comparable to Whitestrips.

Colgate argued in its defense that its claim was literally true – Optic White Toothpaste contains 1 percent hydrogen peroxide, the exact same ingredient used in Whitestrips.  This argument did not hold weight with the NAD, which determined that the context in which the claim was presented was causing a false or misleading message.

“[W]hile perhaps literally true, the claim ‘same whitening ingredient as strips’ reasonably conveys a message beyond the fact that both strips and Optic White contain ‘peroxide,’” the NAD wrote.  Optic White not only contains a far smaller percentage of peroxide than strips – just 1 percent compared to upwards of 6 percent in the strips – it also has a markedly different delivery mechanism – brushing as opposed to sustained contact.

In reaching its decision, the NAD  relied upon a consumer perception study conducted by Proctor & Gamble, which found that 37 percent of respondents interpreted the claim to mean that Optic White was as effective at whitening teeth as strips.  Other factors considered by the self-regulatory body were the “pervasive” whitening claims throughout the packaging, the “repeated and prominent” comparisons to Whitestrips, and a graphic on the Optic White packaging depicting a droplet of peroxide falling from a whitestrip onto a toothbrush.

“[T]his imagery and language reasonably conveys the message that Colgate took the peroxide (and its whitening power) normally found in strips and delivered it in a toothpaste,” the NAD determined. Because Colgate’s evidence was insufficiently reliable to support its express and implied claims, the NAD recommended they be discontinued.

However, the NAD did find that Colgate had adequate support for a more narrowly tailored claim that the toothpaste contains 1 percent hydrogen peroxide in a stable form, a monadic claim that the product provides whiter teeth in one week as compared to a regular, non-whitening fluoride toothpaste, and a claim that Optic White “removes stains that non-whitening fluoride toothpastes do not.”

To read the NAD’s press release about the decision, click here.

What does it mean?   A truthful advertising claim is not sufficient protection against an accusation that it is false and misleading if a reasonable consumer may interpret it as conveying a message beyond the words themselves.   Even if literally true, how that claim may be interpreted must be determined by a careful examination of the context in which the claim is made.

Author: 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.

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