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Even Creepy Rob Lowe Can't Overturn NAD Ruling

Advertisers may believe that claims contained in light-hearted or humorous advertising are immune from challenge.

A recent decision by an important self-regulatory body cautions against such belief. Even claims contained in very humorous or spoof-like advertising may require substantiation.

Background

Comcast Cable Communications, LLC (“Comcast”) challenged the advertising of DirecTC, LLC (“DirecTV”) before the National Advertising Division (“NAD”), a self-regulatory body overseeing national advertising.  In particular, Comcast challenged a series of popular ads featuring actor Rob Lowe and certain fictional alter-egos including “Creepy,” “Painfully Awkward” and “Meathead” Rob Lowe.

NAD found that DirecTV’s ads implied that DirecTV was superior to cable service with respect to signal reliability, picture and sound quality, sports programming and wait times for service.  DirecTV did not submit any substantiation for these implied superiority claims and NAD recommended that the claims be discontinued.  The NAD also found that disclosures in the advertising were inadequate with respect to DirecTV’s customer satisfaction ranking, and “up to 1080p” picture quality.

An appellate panel of the National Advertising Review Board, reviewed NAD’s decision.  In its decision the NARB panel found that  “the challenged Rob Lowe commercials are very funny. However, depending on context, even humorous advertisements can convey messages that require substantiation by the advertiser.”  The decision was based on NARB’s “determination of the net impression reasonably created by the challenged commercials.”

The NARB panel agreed with the NAD that the challenged commercials reasonably conveyed a message that DirecTV was superior to cable with respect to signal reliability, picture and sound quality, sports programming, and service wait times. Since DirecTV did not submit any substantiation for these implied superiority claims, NARB also recommended that they be discontinued.  NARB further recommended that DirecTV discontinue the “Get rid of cable and upgrade to DirecTV” claim in advertisements where an unsupported comparative superiority message is reasonably conveyed.  NARB also agreed with the NAD’s recommendation that the challenged “up to 1080p” claim be modified to include a clear and conspicuous disclosure as to the limited type of programming for which such resolution is available.

While NARB did find that DirecTV had appropriate substantiation for its claims as to customer satisfaction, it nonetheless recommended that DirecTV more prominently disclose the source for its “#1 in customer satisfaction claim.

Take Away

Humor is often an effective tool that can be used by marketers in their advertising. Marketers should be mindful, however, that even light-hearted or obviously tongue-in-cheek ads may require substantiation for implied compared superiority claims.

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