NAD Recommends Telebrands Discontinue Certain Claims for ‘Atomic Beam’ Flashlights; Advertiser to Appeal NAD’s BOGO Finding

New York, NY – July 19, 2018 – The National Advertising Division has recommended that Telebrands, Corp., discontinue certain advertising claims for the company’s Atomic Beam flashlights, including claims that they are “40 times brighter” and more durable than ordinary flashlights and are equipped with features that ordinary flashlights do not provide.

NAD noted that nothing in its decision precludes the advertiser from making comparative claims regarding the Atomic Beam and competing flashlights provided that the claims are supported by comparative testing and clearly disclose the basis of comparison.

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

The claims at issue, made in television advertising, website advertising, and on product packaging, were challenged by Energizer Brands LLC, maker of competing lighting products.

Energizer challenged express claims that included:

• It costs more than $100 to get a flashlight with performance attributes comparable to the Atomic Beam USA flashlight.
• Atomic Beam USA is 40 times brighter than “ordinary” flashlights.
• The Atomic Beam USA flashlight provides features, such as a strobe or zoom function, that no other “ordinary” flashlight provides.
• “Up to an incredible 5,000 lux.”
• The Atomic Beam USA flashlight constitutes a “powerful self-defense tool.”
• “Buy One Get One.”

NAD also considered whether the advertising implied that the advertiser’s flashlight is

far superior to or more durable than “regular” or “ordinary” flashlights or that the flashlight is used/preferred/recommended by the U.S. military or government or made entirely in the United States.

NAD noted in its decision that a consistent theme throughout the challenged advertising is the message that the Atomic Beam has comparative advantages versus “regular” or “ordinary” flashlights.

In the contexts they appear, NAD determined that the advertiser’s references to “ordinary” and “regular” flashlights could reasonably convey a variety of messages to consumers, including the message that Atomic Beam is brighter and more durable than most flashlights, with features not found in most flashlights.  The advertiser did not provide evidence demonstrating the Atomic Beam’s superior brightness over best-selling or “ordinary” or “regular” flashlights or that the “tactical” features of its flashlight were not available on other flashlights.

NAD recommended that the advertiser discontinue claims that the Atomic Beam is “40 times brighter” than ordinary flashlights, provides features such as strobe or zoom that ordinary flashlights do not provide, and that the Atomic Beam is more durable than ordinary flashlights.

The Atomic Beam is advertised has having “up to an incredible 5,000 lux” and makes comparative brightness claims based on measures of lux.  Although the advertiser argued that lux, a measure of the illumination intensity, is consumer relevant to purchasers of flashlights interested in “tactical” functions, the advertising at issue does not frame lux in relation to the flashlight’s ability to focus light and project it over a distance.  A reasonable consumer, NAD determined, may understand lux to be a measure of overall brightness.

NAD found that while Telebrands has a reasonable basis to claim that the Atomic Beam can reach up to 5,000 lux, NAD recommended that the advertiser modify any brightness claim based on lux to make clear it describes the illumination intensity focused on a specific area, and avoid conveying the message that it describes overall light output.

NAD determined that the advertiser did not have a reasonable basis for the claim that the Atomic Beam is a “powerful self-defense tool,” as it is portrayed in television advertising, were a would-be attacker is startled by the strobe function and runs away, and recommended Telebrands discontinue the claim. NAD noted that nothing in its decision prevents the company from advertising that the Atomic Beam can be used as one part of an overall self-defense strategy.

The challenger argued that various elements of the Atomic Beam’s advertising created the net impression that the Atomic Beam is endorsed by or associated with the U.S. military or the U.S. government.  During the course of this challenge, the advertiser changed the name of the product to the “Atomic Beam” instead of the “Atomic Beam USA.”  The advertiser also removed a statement in the commercial which states that the Atomic Beam uses “U.S. Special Forces Tactical Technology,” along with an action shot of individuals who appear to be special forces commandos.

NAD determined that, as modified, the advertising did not convey any message that the Atomic Beam is endorsed by the U.S. military or the U.S. government or that it has any material connection to those bodies.

NAD recommended that the advertiser discontinue the claim that the “The critical components inside the Atomic Beam are made right here in the USA,” but noted that nothing in its decision prevents the advertiser from making truthful and adequately qualified claims that specific parts of the Atomic Beam are made in the USA.

The advertising for the Atomic Beam promotes a “Double Offer” characterized as “Buy One Get One.”  In text on screen in the commercial and on the Atomic Beam website and through audio in the commercial, the advertiser states that a second Atomic Beam is available for a separate “fee.”  NAD noted in its decision that a “Buy One, Get One” offer is generally understood by consumers to mean that they will receive a second item for free or a greatly reduced cost. NAD recommended that the advertiser modify its “Buy One, Get One” offer, to clearly disclose as part of its double offer, the discount or price offered for the second flashlight.

During the course of NAD’s review, the advertiser represented to NAD that it would discontinue the claim, made in television advertising, that “you could spend more than $100, or the Atomic Beam USA could be yours for just $19.99” along with the accompanying visual of a “$132” flashlight.  The advertiser also agreed to permanently discontinue the claim in the commercial that the Atomic Beam uses “U.S. Special Forces Tactical Technology,” along with its accompanying visual, and to permanently discontinue the display of the words “LED Components” written above a “Made in the USA” shield.

These voluntarily discontinued claims will be treated, for compliance purposes, as though NAD recommended the claims be discontinued and the advertiser agreed to comply.

Telebrands, in its advertiser’s statement, said the company would “comply with NAD’s recommendations, with the exception of NAD’s recommendation as to Telebrands’ ‘Double Offer,’ which it intends to appeal to the National Advertising Review Board.”

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.