NAD Recommends RB Discontinue Certain Claims for Mucinex Products, Company to Appeal

New York, NY – June 24, 2014 – The National Advertising Division has recommended that Reckitt Benckiser LLC discontinue certain advertising claims for the company’s Mucinex and Maximum Strength Mucinex chest congestion relievers, including claims that “Only Mucinex has a bi-layer tablet. One side starts fast in 8 minutes. The other side keeps on working for 12 hours.” RB has said it will appeal NAD’s findings to the National Advertising Review Board (NARB).

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

The claims at issue were challenged by Pfizer Consumer Healthcare, the maker of Robitussin, a competing expectorant.

NAD examined advertising claims made in RB’s website, in print, in point of purchase advertisements and in television commercials, including:

•  “The only Bi-Layer Tablet proven to START in 8 MINUTES.”
•  “Only Mucinex has a bi-layer tablet. One side starts fast in 8 minutes. The other side keeps on working for 12 hours.”
•  “Mucinex extended-release bi-layer tablets start to work in 8 minutes and last for 12 hours.”

NAD also considered whether the claims implied that Mucinex bi-layer tablet starts to relieve congestion in 8 minutes or starts to relieve congestion faster than competing products.

The active ingredient guaifenesin is the only expectorant approved by the Food and Drug Administration. It is available in the challenger’s product, Robitussin, in an immediate release form which must be taken every four hours. RB developed its Mucinex bi-layer tablet to provide both immediate release of guaifenesin, as well as extended release so that consumers need only take the Mucinex bi-layer tablet once every twelve hours. NAD noted for the record that the Mucinex bi-layer tablets provide an innovative and convenient way for consumers suffering from chest congestion to take an expectorant with both immediate and extended release guaifenesin.

In this case, the question for NAD was whether the advertising claims that the Mucinex bi-layer tablet “starts” or “starts to work” in “8 minutes” could reasonably be interpreted by consumers to mean that they will begin to experience perceptible symptom relief quickly, at eight minutes after taking Mucinex. Following its review of the advertising at issue, NAD determined that the claims conveyed an eight-minute perceptible symptom relief message.

RB argued that its disclosure, “based on the bioavailability of guaifenesin” and “bioavailability does not imply symptom relief” effectively limited the message and made clear that the product would not provide symptom relief in eight minutes. NAD disagreed. NAD had concerns about the size and prominence of the disclosures, which appear in small type at the bottom of the print advertisements for the Mucinex bi-layer tablets and were not sufficiently prominent for consumers to notice, read and understand. Further, NAD noted, even if the disclosures had been clear and conspicuous, they would not have been sufficient to cure the misimpression of the main message, that Mucinex bi-layer tablets “start in 8 minutes” and “work fast.”

NAD recommended that these claims be discontinued and that in future advertising for the product the advertiser avoid conveying the unsupported message that its product provides perceptible relief for chest congestion symptoms in eight minutes.

The company, in its advertiser’s statement, took issue with NAD’s decision and contended that NAD’s finding went “beyond the advertising at issue and concludes that ‘advertising for guaifenesin products should avoid claims that imply the product provides quick relief from congestion symptoms.’”

“Essentially,” the company said, “the NAD decision prevents RB from making any claims based on this patented bilayer tablet’s proven delivery of its active ingredients.

While RB respects the self‐regulatory process, and the time and effort NAD put into this very complex matter, RB is appealing this decision to the NARB.”