NAD Finds “#1” Claims Supported in Two Recent Decisions

The first of these two cases relates to the carpet cleaning industry. BISSELL Homecare, Inc. challenged the advertising claim made by its competitor Reckitt Benckiser, Inc. that it is the “#1 Carpet Cleaning Brand.” NAD noted that Reckitt Benckiser’s “#1” claim is a sales superiority claim that is widely understood to mean that the advertised brand, as opposed to a specific product, has the highest market share in its category. Reckitt Benckiser cited Nielsen data that tracks units of carpet cleaning products sold to consumers, and NAD determined that the advertiser had provided a reasonable basis for its “#1 Carpet Cleaning Brand” claim.

Reckitt Benckiser’s “#1 Carpet Cleaning Brand” is accompanied by the disclaimer “Based on Nielsen data.” NAD noted that the disclaimer fails to identify a time period and scope of the claim, and recommended that the disclaimer be modified to reflect the basis of the claim more accurately.

Interestingly, this NAD challenge was preceded by a different NAD challenge involving the same parties and products. In the prior proceeding, NAD found BISSEL’s evidence insufficient to support its “#1 Carpet Cleaning Brand” claim.

The second case relates to certain claims made by an advertiser of toothpaste. Colgate-Palmolive Company challenged GlaxoSmithKline Consumer Healthcare’s claims that its Sensodyne brand of toothpaste is the “#1 Dentist Recommended Brand” and “9 out of 10 dentists recommend Sensodyne.”

The “#1 Dentist Recommended Brand” and “9 out of 10 dentists recommend Sensodyne” claims were undisputed with regard to consumers with sensitive teeth. The challenger asserted, however, that the claims are not sufficiently limited to consumers with sensitive teeth. In response, GlaxoSmithKline submitted two consumer perception surveys to support its assertion that the consumer takeaway of the “#1 Dentist Recommended” claim, as it appears on the packaging, were limited to recommendations from dentists for consumers suffering from tooth sensitivity. NAD determined that the advertiser’s claims were not misleading, finding the consumer perception surveys to be reliable. NAD further noted that Sensodyne occupies a distinctive position in the toothpaste market, targeted specifically to tooth sensitivity sufferers.

Takeaway: These two recent NAD determinations serve to remind advertisers of the support required when making certain “#1” claims. Consumer surveys and Neilsen data can aid in supporting such claims, where relevant and applicable.

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