NAD Finds Mega Brands Can Support “Washability” Claims For Dry-Erase Markers; Claim Challenged By Sanford

New York, New York – March 24, 2011– The National Advertising Division of the Council of Better Business Bureaus has determined that Mega Brands Inc., can support certain “washability” claims made for the company’s “Board Dudes RX Washable” dry-erase markers. The claims at issue were challenged by Sanford L.P., the manufacturer of EXPO washable dry-erase markers.

NAD, the advertising industry’s self-regulatory forum, reviewed claims that included:

• “Washable Dry-Erase Markers.”
• “Our special formula washes easily from skin and most clothing with soap and/or detergent and water.”

(Full text of decision available to media upon request.)

In an NAD proceeding, the advertiser has the initial burden of presenting a reasonable basis for its claims.  As a first step, NAD reviewed results of the advertiser’s washability tests and found that the test protocol was appropriate and the test results provided a reasonable basis for the advertiser’s claims.

When an advertiser establishes a reasonable basis for its claims, the burden shifts to the challenger to show either that there was a material flaw in the advertiser’s evidence or that it has more reliable evidence demonstrating a different result. Thus, NAD considered whether the evidence provided by Sanford was sufficient to rebut the evidence submitted by Mega Brands.

In this case, the challenger sought to identify flaws in three separate batches of Board Dudes markers.  First, the challenger submitted the results of washability testing on “Batch 1” of the Board Dudes markers. The results, NAD noted, confirmed the “truthfulness of the advertiser’s washability claim by showing that the markers are indeed washable from fabric.”

Subsequent washability tests on “Batch 2” and “Batch 3” of the Board Dudes markers, however, demonstrated a different result, showing that the markers were not washable from fabric.

Following its review of all the evidence in the record, NAD determined that the results of the challenger’s washability tests on “Batch 2” and “Batch 3” indicated bad batches of Board Dudes markers rather than an instance of false advertising.  Such finding is consistent with the advertiser’s own fabric washability testing in which it found substandard results for certain colors.

The evidence showed that the advertiser conducted routine testing as part of its quality-control process.  The evidence further showed that where the advertiser found substandard results, it acknowledged the batch irregularity and sought to determine the cause of such irregularity and correct the problem.

NAD determined that Mega Brands’ provided adequate substantiation to support the claims that its markers are washable from clothing.

The company, in its advertiser’s statement, said that it “appreciates the NAD’s efforts in this matter and supports the NAD self-regulatory process.”