BBB National Programs Archive

McNeil Challenges P&G Ad Claims Before NAD Forum

New York, NY – August 1, 2007 – The National Advertising Division (NAD) of the Council of Better Business Bureaus  has recommended that Procter & Gamble, the manufacturer of NyQuil Multi-Symptom Cold/Flu Relief, modify certain advertising claims for the product. 

Advertising claims for the P&G product were challenged by McNeil-PPC, the maker of Tylenol Cold Multi-Symptom Nighttime cold relief. McNeil-PPC challenged claims that included:

  • “What good is 4-hour relief if you’re trying to sleep for 8?”
  • “Up to 8 hours of cough relief.”
  • NyQuil MSCFR “gives you up to eight hours of cough relief,” and Tylenol Cold MSN “gives you only four hours of cough relief.”
  • “Don’t be fooled by ‘nighttime’ cold medicines with cough relief that lasts only 4 hours.  Unlike Tylenol Cold Multi-Symptom Nighttime Liquid, NyQuil Multi-Symptom Cold/Flu Relief has the maximum amount of its cough suppressant so you can get the sleep you need.”

The challenger explained that it had launched Tylenol Cold MSN in July 2006, partly in response to the “Combat Methamphetamine Epidemic Act of 2005.” 

The federal legislation was passed in response to the use of pseudoephedrine – a decongestant formerly used in many over-the-counter preparations – in the illicit manufacture of methamphetamine. The legislation seeks to curb the manufacture and use of methamphetamine by requiring drug products containing pseudoephedrine to be available for sale only from locked cabinets or from behind the counter.  As a result of those new requirements, certain manufacturers have elected to reformulate their products without pseudoephedrine.  P&G’s NyQuil MSCFR is a reformulated version of earlier NyQuil products that contained pseudoephedrine.  With this reformulation, the advertiser chose to remove the ingredient without using another decongestant as a replacement. Tylenol Cold MSN uses phenylephrine instead of pseudoephedrine as a decongestant. 

The challenger argued that the eight-hour message is not accurate because NyQuil MSCFR is intended to be dosed every six hours – not every eight – as indicated by the Drug Facts on its product label.   The challenger argued that the advertising at issue did not adequately disclose that the eight-hour claim applies only to cough relief.

The advertiser described the advertising at issue as plain, straightforward, and unequivocal and argued that its product contains enough cough suppressant to relieve cough symptoms for up to eight hours, while Tylenol Cold MSN contains enough cough suppressant for four hours of relief.

NAD examined evidence that included guidance from the Food and Drug Administration on the dosing and efficacy of cough suppressants.

Following its review of the evidence, NAD determined consumers could reasonably take away the unsupported message that NyQuil MSCFR is an eight-hour product that works twice as long as Tylenol Cold MSN for all cold symptoms. 

To avoid the potential for any consumer confusion, NAD recommended that in future advertising wherever 4-hour versus 6-8-hour relief is mentioned in comparing the two products, the modifier “cough” should appear as well; that the use of “up to” and “cough relief” be made more clear and conspicuous; and that the range “6-8” or “up to 8” be used in reference to duration of cough relief, rather than an unqualified “8.”

Finally, NAD concluded that the advertiser’s express claim, “What good is 4-hour relief if you’re trying to sleep for 8?” did not falsely imply that its product would confer eight hours of sleep while the challenger’s competing product would provide only four hours of sleep.

P&G, in its advertiser’s statement, said it “does not see a potential that consumers could interpret the advertisements to address symptoms other than cough relief, given the repeated references to cough relief and the absence of references to any other cold symptoms.  Nor does P&G share NAD’s concern that the words ‘up to’ in the advertisements were not sufficiently prominent to qualify the claims for the duration of cough relief. …”

“Because NAD recommends that P&G emphasize messages that P&G believes the advertising already conveyed, P&G will take the recommendations into account if it decides to make these claims in future advertising for NyQuil MSCFR,” the company said. The company noted, as well, that supports advertising self-regulation and appreciates NAD’s role.