It’s Not Only What You Say, It’s How You Say It Too!
As marketers, what marketing campaigns say is important, but how the claim is made is just as important. Comparing one’s products to those of a competitors could be fair game as long as the comparison is based on “…reasonable basis for its claims….” Comparing labels of products to show the difference may also be acceptable. Questions may arise as to HOW such comparisons are done.
In a recent case, the National Advertising Division (NAD) “concluded that the…advertisements reasonably conveyed the broader, unsupported message that the challengers’s…(product) does not or cannot provide relief….” Consequently, the “NAD recommended that…ads either be discontinued or sufficiently modified to strictly limit the message conveyed to a comparative….” Furthermore, the “NAD concluded, consumers could reasonably take away the unsupported message that not only does… (product) lack the FDA-indications…, but that, in fact, … (product) cannot relieve…” symptoms. The NAD stated that a marketer “… is free to compare FDA-approved label indications between the parties’ allergy relief products and claim that… (product) is not indicated for…” particular relief, “the advertiser may not, in the absence of competent and reliable scientific evidence of its own, claim that… products do not or cannot relieve these two symptoms.”
Bottom line, what marketing campaigns state is just as important as HOW the claims are made. substantiationequalstrust #transparencyformstrust#advertisingandmarketinglawyer #hispanicadvertisingandmarketingattorney