New York, NY – May 24, 2012 – The National Advertising Division has determined that because VTech North America LLC has made voluntary modifications to its InnoTab computer tablet, the message conveyed by advertising claims that promote the tablet’s capabilities is not misleading.  The InnoTab computer tablet is geared to children aged four years to nine years.

NAD is an investigative unit of the Advertising Self-Regulatory Council and administered by the Council of Better Business Bureaus. The advertising at issue was challenged before NAD by LeapFrog, which markets a competing computer tablet for children called the LeapPad Explorer.

The challenger contended that VTech’s product packaging and advertising presented the overall impression that children could use the InnoTab, as sold, to perform a range of functions that include the ability to download games and other apps, watch movies, play music, and store and view photographs.

However, the challenger asserted, in order to access the full range of functions that VTech promotes, consumers must use a separately-purchased Secure Digital (SD) memory card, a material omission likely to mislead consumers.

The advertiser rejected LeapFrog’s contention that its marketing materials were deceptive because they do not disclose that an SD card is required in order to expand the memory of the InnoTab to access the additional content which the InnoTab is capable of running.  Further, the advertiser contended there was no implied claim that the product could  perform all of the functions depicted without additional memory, thus the absence of a disclosure does not constitute a material omission.

At the outset, NAD noted with approval that the advertiser voluntarily made available, through an online software update, 42 MB of InnoTab on-board memory for units previously sold, as well as redesigned the next generation InnoTab that will come with 42 MB of on-board memory immediately available.  NAD also appreciated that, during the course of the proceeding that the advertiser voluntarily agreed to modify its product packaging and advertising, including commercials and videos, to better disclose that “additional content may require an SD card (not included).”

Taking those changes into account, NAD then considered whether VTech’s advertising, regarding the various functionalities of the InnoTab, was truthful and accurate.
Following its review of the advertising at issue, NAD determined that the message conveyed was not misleading in light of the advertiser’s modifications to the InnoTab product. However, NAD noted, a disclosure would have been necessary had the advertiser not redesigned the product to make a sufficient amount of on-board memory immediately available for user downloads.

NAD noted in its decision that VTech advertising included a “free downloads” claim. NAD determined that in order to prevent consumer confusion regarding the fact that there is a limitation to this offer (based on the size of available memory), the advertiser must clearly and conspicuously disclose, in close proximity to the “free downloads” claim, that the purchase of additional memory may be needed.

After examining the advertiser’s proposed revised InnoTab packaging – which in several places discloses that “Additional content may require an SD memory card (not included) – NAD the font size of the disclosure on the inside front flap of the packaging be increased.

Further, NAD recommended that the disclosure on the back of the revised packaging should be made in close proximity to the “free downloads” claim and should be made sufficiently prominent, clear, and conspicuous to ensure that consumers will notice it.

InnoTab, in its advertiser’s statement, said that it respectfully disagrees “with NAD’s position with respect to the initial InnoTab product.”

The company said, however, that it would “be mindful of NAD’s advice regarding font size and placement for any future packaging run for the product.”