Ad Watchers: It’s not puffery. Do you have the evidence to be #1?

June 14, 2023

Number 1 Claims

 

Number one claims communicate powerful messages of comparative superiority over competitors and can be very effective in advertising a product or service, but powerful claims require careful use and strong support. So what does it take to be able to support a #1 claim?

In this episode of Ad Watchers, hosts Dan and Annie discuss the complexity behind supporting #1 claims in advertising, review relevant National Advertising Division cases, and provide valuable insight to advertisers regarding the type and degree of information required to support such claims.

 

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Related Resources

NAD Recommends Discontinuing Certain Comparative Claims

Pivotal Moments for Ad Law: Pfizer Factors & Comparative Advertising

Ad Watchers: The Best Podcast Episode Ever: What is Puffery?

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In the latest episode of Ad Watchers, hosts Dan Range, an attorney at the National Advertising Division (NAD), and Annie Ugurlayan, NAD’s Assistant Director, discuss the different types of #1 claims and what is needed to substantiate them. How do advertisers prove their product is the best?

06:35 - Dan explains that NAD doesn’t classify #1 claims as puffery, meaning that these claims bear a heavier burden of substantiation than a boastful or exaggerated opinion. In a previous episode, Ad Watchers hosts Hal and La Toya explored the different types of puffery.

When deciding what is and is not puffery, NAD asks the following questions:

  • Does the representation at hand deal with provable matters? 

  • Is the statement distinguishable from other representations regarding measurable characteristics? 

  • Does the ad use wording or phrases that convey it is an expression of opinion?


While a product being “#1” is a matter of opinion, it is provable how many people hold that opinion. According to Dan, such claims “convey a message of superiority based on some measurement.”

15:53 - Annie provides an example of a #1 claim made by Behr Paint Company. She explains that they developed an advertisement attempting to communicate that three of their paint products were America's number-one-rated paints and stains. However, the commercial failed to effectively communicate which of their products was rated number one.

NAD ruled that consumers could reasonably assume the claim referred to Behr’s entire line of products, resulting in a “line” claim. According to NAD, these types of claims should“reasonably communicate that the product benefits promised are true for all of the products in a line.” If that is the case, the claim would require 85% testing against the relevant marketplace.

One of the factors in determining whether an ad conveys a line claim is whether the ad mentions specific products. Because Behr’s claim was not limited enough, it was unsupported by the evidence. NAD has noted that in order to substantiate a line claim, an advertiser must produce evidence demonstrating that all of the products in the line will perform as promised.

21:37 - Annie shares another example of two cases where the burden of substantiation was not met. These cases each involved Johnson & Johnson’s Neutrogena and L'Oreal’s CerVe, alternating between challenger and advertiser. Both brands claimed they were “#1 dermatologist recommended” and challenged the competition.

In addition to its skincare claim, Johnson & Johnson claimed that Neutrogena was “#1 Dermatologist Recommended.” NAD determined that this conveyed a superiority message broader than Neutrogena being the most recommended skincare brand. Because the advertiser’s evidence only addressed the claim “#1 dermatologist recommended skincare brand,” NAD recommended that the advertiser discontinue additional claims.

In support of its skincare claim, Johnson & Johnson provided NAD with the results of a survey of dermatologists. However, NAD had several concerns regarding the methodology of the survey and its ability to capture the full breadth of dermatologist recommendations.

Similarly, L’Oréal relied on data from an online survey of approximately 1,500 dermatologists, which recorded the number and percentage of dermatologists’ average weekly recommendations by brand name in the surveyed categories. NAD determined that it was not reliable because it did not adequately instruct respondents not to duplicate their total average weekly recommendations between and among categories and, therefore, created the possibility of double-counting

Finally, Dan and Annie close the episode by recounting the lessons learned from the examples they presented. They remind listeners to handle their advertising claims with care. Test them regularly against new competition or updated products, and be sure that all claims are clear and narrowly tailored to a specific product or product line. 

For more advice on substantiating claims, read this how-to checklist.

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