NARB Recommends Telebrands Modify “Double Offer” Claims for its Atomic Beam Lighting Products Following Energizer Challenge

New York, NY – Mar. 13, 2019 – A panel of the National Advertising Review Board (NARB) has recommended that Telebrands, Corp. modify its “double offer” and “Buy One Get One” claims to clearly and conspicuously disclose the discount or price offered for the second flashlight and any associated charges and fees.

The advertising at issue was challenged by Energizer Brands, LLC before the National Advertising Division (NAD), an investigative unit of the advertising industry’s system of self-regulation.

In its decision, NAD had 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 (e.g., “Buy One, Get Second One for $9.99” or “Buy One, Get One 50% off”).

Telebrands appealed NAD’s recommendations to NARB.  NARB is an appellate unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

The challenged claims appeared in advertising for the Telebrands’ Atomic Beam flashlight in which consumers were told that they would receive a second flashlight for a “separate fee.”  NAD determined that the advertising reasonably conveyed that consumers would receive the second flashlight at a deep discount or free with the payment of a nominal fee.

The advertiser argued that NAD’s interpretation was not supported and that “fee” and price” are synonymous.  Additionally, the advertiser argued that the offer’s terms were fully disclosed, particularly on its website, where consumers purchase the product.

NARB agreed with NAD’s finding.  Specifically, the NARB found that the television commercials refer to the “separate fee” ($19.99 later reduced to $9.99) for the second flashlight much less prominently than the rest of the offer terms such that consumers will not notice or understand the disclosure.  The NARB determined that consumers would expect the fee to be a relatively small amount connected to shipping, handling or like service.  Consistent with FTC’s Guide on the use of word “Free” and Similar Representations, consumers must understand the amount of the fee and what it represents within the four corners of the ad, and not, as the advertiser suggests, on its website during checkout.

As to the website advertising, Telebrands initially referred to “Just pay a separate $9.99 fee” only at check-out in connection with the purchase of the second Atomic Bean flashlight, and later added the disclosure to the initial “Buy One Get One” offer.  NARB took issue with the disclosure for different reasons.  NARB noted that a disclosure only at checkout is not sufficient because the material terms are not disclosed in conjunction with the “Buy One Get One” offer and can cause consumer deception.  However, NARB noted that the disclosure now appearing with the “Buy One Get One” offer was not sufficiently prominent and used “fee” in a vague and unclear manner.

Therefore, the NARB recommended that Telebrands modify its “double offer” and “Buy One Get One” claims to clearly and conspicuously disclose the discount or price associated with for the second flashlight and any other charges and fees.

Telebrands, in its advertiser’s statement, advised that “the advertising that was the subject of this proceeding is no longer running and, if Telebrands develops additional advertising for this product, it will take into account the recommendations of NARB.”

Note: A recommendation by NAD or NARB 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.