NAD Reviews Advertising For Chloraseptic Products

New York, NY – May 27, 2009 – The National Advertising Division of the Council of Better Business Bureaus has recommended that Prestige Brands discontinue advertising its Chloraseptic Max Oral Anesthetic/ Demulcent Lozenges and Chloraseptic Max Oral Anesthetic/ Demulcent Sore Throat Spray as “The strongest medicine you can get without a prescription.”

NAD, the advertising industry’s self-regulatory forum, examined broadcast advertising and a free-standing insert (FSI) for the Chloraseptic products, following a challenge by Combe, Inc., manufacturer of competing Cepacol brand products.

The FSI, which ran in the New York Times, displayed the advertiser’s Chloraseptic Max Spray and Lozenge products side by side.  The television commercial, on the other hand, focused on the Chloraseptic Max Spray product but featured the Chloraseptic Max Lozenge in the last frame. Both the FSI and the commercial featured the claim at issue: “The strongest medicine you can get without a prescription.”

NAD noted in its decision that both the challenger and advertiser in this case compete in the sore throat segment of the over-the-counter (OTC) drug business with flagship brands Cepacol and Chloraseptic respectively.  Both product lines contain liquid spray and lozenge products and both are sold under the legal authority of Food and Drug Administration’s (FDA) monograph system as OTC drugs.

Both the Cepacol and Chloraseptic sore throat lozenge products are formulated with benzocaine at the maximum strength approved by the FDA. The advertiser’s Chloraseptic Spray is formulated with 1.5% phenol, the maximum permissible monograph strength, while the challenger’s Cepacol spray includes 5% benzocaine, below the maximum permissible monograph strength (20%) for that ingredient.

The challenged advertisements introduced the advertiser’s new product, Chloraseptic Max Spray, which contains a higher dosage of phenol than the Chloraseptic original sore throat spray. 

Both the advertiser and the challenger agreed that Chloraseptic Max Spray contains the maximum level of phenol and, that the Chloraseptic Max Lozenges contain the maximum level of benzocaine allowed by the FDA monograph, qualifying both of the products for a “maximum strength” claim.

Following its review of the advertising, NAD determined that the challenged claim “Strongest medicine … without a prescription” in both the FSI and commercial could reasonably be interpreted as referring to both the Chloraseptic Max Spray and Lozenge products (in addition to the regular strength Chloraseptic products featured in the final frame of the challenged commercial).

Further, NAD determined that consumers could reasonably interpret the “Strongest medicine … without a prescription” claim to mean that Chloraseptic Max Spray and Lozenge products provide superior pain relief, a claim that is unsupported by the evidence in the record.  Consequently, NAD recommended that the advertiser discontinue its use of the claim, “Strongest pain relief … without a prescription.”

In arriving at its decision, NAD considered the fact that the FDA Monograph makes no reference to the permissibility of the use of the word “strongest” to describe maximum strength OTC sore throat relief products.  Further, NAD noted that the challenged claim, “strongest medicine … without a prescription” is not a traditional parity claim, such as “can’t buy anything stronger without a prescription” or “nothing is stronger.” 

NAD has consistently held that broad, unqualified superiority claims such as “toughest,” “strongest” and “highest” must be supported by reliable data showing that the product exceeds all other competitors with respect to the attribute for which superiority is claimed. Further, NAD precedent supports the finding that use of the term “strongest,” in general, communicates a superiority claim and not a parity claim.

In its advertiser’s statement, Prestige Brands took issue with NAD’s decision.

“Nevertheless, in the interest of cooperation and because we are confident that the formulation benefits of the Chloraseptic Max spray and lozenge products can be communicated with alternative language, the advertiser will adopt more traditional maximum strength parity claims in the future,” the company said.