It’s Not Funny!

Denigrating a competitor’s product in a marketing campaign is usually not advisable, particularly when the marketer cannot objectively substantiate its claims. In a recent decision by the National Advertising Division (NAD), the marketer of a sports drink could not substantiate its claims of “More Natural” and “Better Hydration.” “NAD noted that the evidence in the record did not contain any analysis or evidence demonstrating that … products contain more natural ingredients – either by quantity or volume – than other comparable products. Additionally, … did not provide evidence that the inclusion of the specific natural ingredients used in its product makes it a better sports drink than anything else on the market.” Furthermore, the NAD stated that “[t]he record … lacked any evidence establishing that … provides better hydration than its competitors because it contains more natural ingredients.” The NAD recommended that the marketer discontinue the unsubstantiated claims. The marketer refused to do so. The NAD referred the matter to the Federal Trade Commission (FTC). No matter how funny the advertising campaign may be, if the claims cannot be substantiated, especially when denigrating a competitor, it could become a costly campaign to defend. #transparencyformstrust #substantiationequalstrust #advertisingandmarketinglawyer