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NAD Decision Demonstrates Perils In Relying Upon Regulatory Approval

Advertisers typically take comfort if their advertising has been approved by the governing regulatory agency. A recent NAD decision in the pet care context places that long-standing belief into jeopardy.

Advertisers typically take comfort if their advertising has been approved by the governing regulatory agency. A recent NAD decision in the pet care context places that long-standing belief into jeopardy. NAD ruled against an advertiser finding that the language used in its advertisements was misleading to consumers even if though the language was previously vetted by a federal regulatory body that has jurisdiction over its products.

Earlier this year, NAD recommended that Farnam Pet Products modify or discontinue certain advertising claims for its Adams Flea & Tick Spot On for Dogs including the advertiser's claim that its product "starts to kill fleas and ticks in 15 minutes." The claims at issue were challenged before NAD by FidoPharm, the maker of PetArmor, a competing product.

Adams and PetArmor are both applied topically and designed to control fleas and ticks on dogs all year round. The advertiser's product contains certain pesticides that are regulated by the Environmental Protection Agency ("EPA"). The advertiser argued that because the EPA approved the claim "starts to kill fleas and ticks in 15 minutes," NAD should defer to EPA's expertise and decline to exercise jurisdiction.

NAD held that "[d]eference to regulatory authority 'is not automatic, and it never completely replaces the obligation of the self-regulation system to exercise its own sound discretion.'" Here, NAD determined that the advertiser's product reaches full efficacy seven days after application. Thus, NAD recommended that the advertiser either discontinue its "starts killing fleas and ticks in 15 minutes" claim or modify the claim to disclose the amount of time needed to reach full efficacy.

NAD further recommended that the advertiser modify television advertising depicting the product working in 15 minutes. NAD also found that the evidence was insufficient to support the advertiser's comparative claim that PetArmor takes "8 times longer" to kill fleas and ticks on dogs than the advertiser's product.

NAD also determined that the advertiser provided sufficient support for certain claims related to its product's applicator. While NAD found that the advertiser was free to promote these claims in its advertising, it also recommended that the advertiser do so in a manner that avoids implying that competitive products are difficult to apply.

Take away: This decision, in the self-regulatory context illustrates that even where the products at issue are subject to another regulatory body, NAD may still exercise its own expertise and will not hesitate to require advertisers to discontinue or modify their claims.

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