New York, NY – May 4, 2009 – The National Advertising Division of the Council of Better Business Bureaus has recommended that Kohler Co. either discontinue or substantially modify advertising claims that position the company as the “global leader” among competing toilet brands. Kohler has said it will appeal the NAD’s decision to the National Advertising Review Council (NARB), the appellate arm of the advertising industry’s self-regulatory forum.

NAD examined packaging, print and Website advertising claims made by Kohler for its toilets. The claims at issue were challenged by American Standard Brands, manufacturer of competing toilets.  Claims at issue include:

• “Global leader in performance” in the areas of flushing power, cleanliness and noise levels.
• “Global leader in performance toilets.”

NAD noted in its decision that both the advertiser and the challenger are free to make non-comparative advertising claims of general excellence with regard to the performance of their products.   The issue before NAD, however, was whether the claim “the global leader in performance toilets,” in the context in which it appeared in the challenged advertisements, would be understood by consumers as an expression of the advertiser’s opinion or as a factual claim requiring substantiating evidence.

The advertiser’s Website video identifies its “3 Performance–Driven Platforms” –

 “Powerful,” Quiet” and “Clean” – and ends with the tagline “The Global Leader in Performance Toilets.” 

Another video references “extraordinary flushing power” and ends with the challenged claim.

The challenged claim is made on the front and back pages of brochures, as well as inside, above a paragraph that states “where flushing power is concerned, Kohler offers a variety of performance-driven technologies that deliver more than enough force to meet any residential or commercial needs.”

On the advertiser’s packaging, the advertiser claims that “Class Six flushing technology provides exceptional bulk waste performance and superior self-cleaning power” while “Powerful . . . Class Five flushing technology delivers extraordinary power.” 

NAD determined that, in the context of the challenged advertisements, the advertiser linked what standing alone could be puffery to specific performance attributes – flushing power, cleanliness and noise reduction.

Neither the advertiser nor the challenger presented evidence related to cleanliness capability or noise reduction and NAD determined that the evidence related to flushing power indicated that both the advertiser’s and the challenger’s products are, at a minimum, at parity, based on industry standards.

Following its review, NAD recommended that the advertiser discontinue its claim “the global leader in performance toilets” or substantially modify its future advertising to avoid conveying the unsupported message that its toilets are superior with regard to flushing power, cleanliness and noise reductions levels.  However, NAD noted that nothing in its decision prevents the advertiser from making non-comparative claims of general excellence with regard to its toilets in the areas of performance capability, innovation, water conservation or design.

Kohler, in its advertiser’s statement, said it “respectfully disagrees with the NAD’s opinion on the tagline at issue,” because consumer would not perceive the tagline, in the context of the advertising, “as a quantifiable, comparative statement of fact.”

Further, the company said, even if the tagline “were the tagline a comparative claim, that claim is substantiated by the undisputed record evidence, including the fact that Kohler offers the most flushing technologies in the industry.”

Kohler said it will appeal NAD’s decision to NARB.