NAD Recommends Reckitt Benckiser Discontinue Certain Germ-Fighting Claims for Lysol Disinfecting Spray, Wipes Products Following Clorox Challenge

New York, NY – Feb. 23,  2016 – The National Advertising Division has recommended that Reckitt Benckiser, Inc., discontinue certain claims made in print and television advertising for the company’s Lysol Disinfecting Wipes and Spray products. The claims at issue were challenged by The Clorox Company, maker of Clorox Disinfecting Wipes and Spray products.  Reckitt Benckiser 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.

Claims reviewed by NAD included:

• “Help Fight the Flu Before it Starts”
• Approved to kill 45% More Types of Germs vs. Leading Brand of Wipes*
  • (*Based on EPA Approved Master Labels.  Lysol Spray vs. Competitors’ EPA Master Labels.”)

NAD also considered whether the advertising at issue implied that:

• Lysol Wipes and Spray are superior to Clorox products in terms of germ-killing efficacy or provide health benefits that Clorox products do not.
• Families who use Lysol Wipes and Spray rather than Clorox Wipes and Spray will be healthier.
• Families who use Clorox Wipes and Spray rather than Lysol Wipes and Spray may not be healthy and are in danger of catching germs.

NAD, in its decision, noted that in analyzing the express claim at issue, it was mindful of the Environmental Protection Agency Guidelines regarding pesticide regulated products and claims of comparative disinfection.  In a recent case involving comparative disinfecting claims made by Clorox, NAD noted that EPA Label Review Manual Guidelines do not allow pesticide regulated products to claim superior efficacy as compared to other products.

The advertiser noted that its claims clearly disclose that the express claim at issue is based on the EPA Master Labels.  NAD found, however, that the key issue was not the adequacy of the advertiser’s disclosures but, rather, whether the advertiser could properly support its comparative germ-killing claim solely upon the EPA registrations of the parties’ products without violating or implicating the EPA’s admonition against claiming superior disinfecting efficacy or power.

NAD noted the absence in the record of product testing that would demonstrate that the  advertiser’s products kill more germs than the challenger’s products. Further, there was no consumer perception evidence to indicate how the express claim was interpreted.

NAD questioned whether the audience of general consumers to whom these advertisements are directed would understand the meaning of “EPA Master Label” and all that the EPA registration for Master Labels entails or the relevance and significance of an “approved” EPA Master Label, particularly given the absence of any evidence as to what germs the respective Clorox products actually do or do not kill irrespective of its approvals.

NAD concluded, the net impression of the challenged claims in the contexts in which they appear is that because Lysol Spray and Wipes are “approved to kill [45%] more germs” than the Clorox counterparts, they are necessarily more effective, stronger or superior disinfecting products, and that Lysol products actually kill 45% more germs than Clorox product and, as such, will keep families healthier – messages that were not supported by the evidence in the record. NAD recommended that the advertiser’s claims be discontinued.

RB, in its advertiser’s statement, said the company will appeal NAD’s findings to the National Advertising Review Board (NARB.)

“RB can accept (although disagree) that certain uses of this claim, in certain contexts might convey implied messages, and RB has discontinued the commercial and print advertising at issue in this case. NAD, however, seemingly concluded that this literally expressly truthful claim, in any context is unsupportable … . Advertising law is rooted in reviewing claims in the context of advertising and RB cannot understand how this truthful comparative claim can be considered to imply an unsupported message, regardless of context, particularly in the absence of any consumer perception data.”