NAD Finds ‘Lightest,’ ‘Warmest’ Claims for Eddie Bauer Jacket are Provable, Not Puffery; Finds Advertiser Can Support Certain Claims

New York, NY – Sept. 10, 2015 – The National Advertising Division has recommended that Eddie Bauer,LLC, discontinue claims that the company’s “MicroTherm StormDown Jacket” is the the “Lightest” and “Warmest.” NAD found, however, that the advertiser could support claims about the product’s performance when wet and claim related to the company’s guarantee.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

NAD, pursuant to its ongoing monitoring of national advertising, requested the advertiser’s support for the following claims:

• The New MicroTherm StormDown Jacket.  Lightest.  Warmest.  Guaranteed.”
• “Hydrophobic, DWR-treated down retains loft and insulating power even when wet.”

The advertiser contended that the claims “Lightest” and “Warmest” were puffery.  NAD noted in its decision that in deciding whether a commercial message requires substantiation, it evaluates whether the use of a superlative is vague and fanciful with no objective measure of superiority or whether it refers to specific attributes which are likely to suggest that product is comparatively better in some recognizable or measurable way.

If the superlative is used in a way that suggests a product is measurably better than its competitor, it is not puffery.  Both the claims, “lightest” and “warmest” are objectively measurable and refer to specific attributes that suggest that this jacket is comparatively, measurably superior to other products.  As a result, NAD determined that the claims were not puffery.

NAD further determined that a reasonable interpretation of the claim “Lightest.  Warmest.  Guaranteed.” is that the Eddie Bauer MTSD Jacket is both the lightest and the warmest jacket.  Unqualified superiority claims like “lightest” and “warmest” must generally be substantiated by comparative testing against a substantial portion of the comparative products, usually 80%.

NAD noted that nothing in its decision prevents the advertiser from making the claim that there is no other lightweight jacket warmer than the MTSD jacket or no warmer jacket in the product category, as long as the advertiser can support the claim. However, NAD recommended that the unqualified claim “Lightest. Warmest.” for the MTSD Jacket be discontinued.

NAD noted that the advertiser provided sufficient support for the claim that all of its products, including the MTSD jacket, are backed by the following company guarantee: “Every item we sell will give you complete satisfaction or you may return it for a full refund.”  NAD determined that the advertiser supported its claims that the MTSD jacket is “hydrophobic” and “retains loft and insulating power under wet conditions.”

In its advertiser’s statement, Eddie Bauer said it respectfully disagrees with the NAD’s conclusion regarding the message conveyed by the “Lightest. Warmest.” phrase in Eddie Bauer’s past advertising and that Eddie Bauer failed to provide a reasonable basis for that claim. However, Eddie Bauer notes that the advertisements using the “Lightest. Warmest.” phrase have not been in circulation for many months and Eddie Bauer does not intend to reinstate them in that form. Eddie Bauer will take NAD’s recommendation and guidance into account in future advertising. Eddie Bauer supports the self-regulatory process and appreciates NAD’s thoughtful consideration of the advertisements at issue.”