NAD Recommends Bausch & Lomb Discontinue Certain Challenged Claims for Ultra Contact Lenses Following Challenge by J&J Vision Care

New York, NY – April 21, 2016 – The National Advertising Division has determined that Bausch & Lomb Incorporated can support advertising claims that promote the presence of polyvinylpyrrolidone (PVP), a long-chain polymer with a high molecular weight that attracts and maintains moisture, in the company’s Ultra contact lenses with MoistureSeal Technology.

NAD recommended, however, that the company discontinue claims that the Ultra product contains “4 times more PVP” than competing lenses made by Johnson & Johnson Vision Care, Inc., (JJVC). NAD also recommended the advertiser discontinue claims that Ultra lenses have “best-in-class properties for best-in-class performance,” and certain other comparative performance and preference claims.

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

JJVC, maker of Acuvue Oasys lenses, challenged express claims made for Ultra and directed to eye care professionals, including:

• ULTRA contains “…significantly more PVP (4x as much of the wetting agent) than silicone lens material, senofilcon A [ACUVUE OASYS].”
• “Best-in-class properties for best-in-class performance.”
• “Patient preferred for end-of-day comfort over the leading silicone hydrogel lenses . . . 2 to 1 versus ACUVUE OASYS.”
• “BETTER COMFORT: Preferred 3 to 1 on average vs. wearing Acuvue Oasys, Air Optix Aqua and Biofinity lenses.” 
• “In a study comparing leading silicone hydrogel lens brands, more patients agreed that Bausch & Lomb ULTRA provided better overall comfort.”
• “BETTER VISION: Preferred 4 to 1 for clear end-of-day vision on average vs. wearing Acuvue Oasys, Air Optix Aqua and Biofinity.”
• “[M]ore patients agreed that Bausch & Lomb ULTRA contact lenses with MoistureSeal technology provided better comfort while using digital devices over the leading silicone hydrogel lenses.”

NAD also considered whether the advertising at issue implied that the Bausch & Lomb product outperforms all other silicone hydrogel lenses for vision and comfort.

A key issue before NAD was whether PVP is present in Bausch & Lomb’s lenses. The challenger has patented a technology that embeds its lenses with PVP and asserted that the advertiser’s process for making its lenses cannot create any PVP.

Following its review of the evidence in the record, NAD determined that advertiser could support the claim that PVP is present in its lenses. However, NAD found that the advertiser’s evidence was not sufficiently reliable to support the claim that its Ultra lenses have “significantly more PVP (4x as much of the wetting agent) than [ACUVUE OASYS lenses].”

Further, NAD determined that the evidence in the record did not support the claim that Ultra  lenses have “best-in-class properties for best-in-class performance,” and recommended that the claim be discontinued. However, it noted that factual information in a print advertisement’s chart was accurate and that the professionals the advertisement targeted were sufficiently sophisticated to understand the data. Nothing in its decision prevents the advertiser from presenting the chart data in a stand-alone context or in a manner that doesn’t convey a superiority message.

NAD further determined that the advertiser’s “refit” study methodology was materially flawed and that the study’s results were insufficiently reliable to support the advertiser’s comparative performance and preference claims.

NAD recommended that the advertiser discontinue the remaining challenged claims, including “best-in-class performance.”

Bausch & Lomb, in its advertiser’s statement, said the company would comply with NAD’s recommendations.

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.