New York, NY – July 1, 2009 – The National Advertising Division of the Council of Better Business Bureaus has referred advertising for Dr. Frank’s Joint Pain Relief for Dogs and Cats  to the Federal Trade Commission (FTC), following a second compliance review.

NAD, the advertising industry’s self-regulatory forum, initially examined advertising for the product following a challenge brought by Hill’s Pet Nutrition, Inc. to advertising claims that appeared in a television commercial, on product packaging, and in Internet advertising.

In its initial decision in July 2008, NAD concluded that the evidence in the record was insufficient to support the advertiser’ specific performance and efficacy claims for Dr. Frank’s Pain Spray for Dogs and Cats and recommended that the advertiser discontinue claims that included:

• “You spray, your pet drinks, and the pain stops everywhere – it’s that simple”
• “Never before have these nine homeopathic ingredients been combined to stop inflammation, pain and stiffness”
• “now with Dr. Frank’s spray you can stop their suffering”
• “… stop your pet’s pain”
• “Relieves mild to [severe] chronic joint and muscle pain” [caused by arthritis, injury or surgery, hereditary conditions, etc.]
• “works for all joint pain – no matter what the cause.”

NAD further recommended that the advertiser discontinue all testimonials containing incredible product performance claims, as they appear on its web site (including its streaming video) and in its television commercial.  This recommendation extended to the testimonial by Dr. Frank.

NAD further concluded that “an historical or traditional use” claim would not be appropriate for the advertised homeopathic product and the specific performance and efficacy claims presented.

Finally, NAD noted that while it appreciated the advertiser’s voluntary and permanent discontinuation of the claim “Doctor Recommended” on the product packaging as it was depicted on its Website, the product packaging had not been replaced on all pages of the site. NAD recommended that the advertiser continue its efforts to ensure that this modification is made consistently throughout its site.

Although the advertiser noted at the time that it strenuously disagreed with NAD’s decision, it agreed to modify its advertising to comport with NAD’s recommendations and to take these recommendations into account when developing future advertising. 

NAD opened its first compliance review after observing that the claims at issue continued to air in television and Internet advertising.

In response to that compliance inquiry, the advertiser informed NAD that its Website was under revision and that it had notified its media buyers to pull all commercials as soon as the NAD decision was issued, although certain commercial airings could not be immediately cancelled.

NAD noted its disappointment that the commercial did not cease airing sooner and that the Website continued to present the same claims. NAD observed, however, that ultimately the Website had been modified, and accepted the advertiser’s representation regarding the television commercial, and closed the compliance inquiry.

At the outset of NAD’s second compliance review, the advertiser asserted that the commercial at issue in the underlying proceeding had ceased airing on or about August 25, 2008, and that a new commercial was developed, based upon new scientific testing. The advertiser asserted that it had “performed and completed a parallel, double-blind, placebo controlled trial of its homeopathic formula, the results of which, the advertiser stated, demonstrated that Dr. Frank’s Joint Pain Relief for Dog and Cats stops joint pain, aches and stiffness in animals.  

NAD precedent makes clear that an advertiser must provide substantiation for its claims at the time they are disseminated to the public. NAD did not accept or review the proffered new evidence, because NAD policies and the NAD/CARU Procedures do not permit advertisers, in the course of a compliance review, to produce new evidence to support the same claims in the originally challenged advertising.

NAD observed that the original and “new” television commercials at issue were identical, excepting a change in the toll-free order number, and that the streaming video commercial remained unchanged, with the exception of a disclaimer during the consumer testimonials and the removal of the word “inflammation from the claim “Stop inflammation, pain and stiffness.”    

NAD further noted that the advertiser’s Website – which had been previously revised according to NAD’s original recommendation to remove the product packaging bearing the claim, “Dr. Recommended” and numerous testimonials – once again featured the product-packaging claim and testimonials, including a testimonial from Dr. Frank, despite NAD’s recommendation.

Given the advertiser’s continued failure to bring its advertising in the underlying proceeding into compliance with the recommendations in NAD’s decision,

NAD referred the matter to the appropriate governmental agencies for further review, pursuant to NAD/NARB Procedures Sec. 4.1(B).