The National Advertising Division of the Council of Better Business Bureaus says it will continue to zero in on personal-care ads with anti-aging claims or those that draw comparisons to surgical procedures such as Botox .

In particular, an ad that makes "specific quantitative claims" such as "85 percent wrinkle reduction" is more likely to catch the watchdog's attention because it needs specific quantitative and sound scientific support, NAD Associate Director David Mallen said in an interview.

Those same types of claims were cited last year by Director Andrea Levine in her effort to describe the line between puffery and express performance claims (¹ Also see "NAD Remains On The Lookout For Performance Claims That Exceed Puffery" - HBW Insight, 9 April, 2007., p. 3).

NAD's active monitoring program accounts for 20 percent to 30 percent of all cases it reviews annually. Between half and 60 percent of those cases in recent years have been in the area of dietary supplements, according to Mallen.

The rest of the cases NAD looks at annually stem from complaints filed by firms against competitors believed to be using unfair or misleading advertising.

Mallen noted that in addition to seeing a competitor get its comeuppance for inappropriate advertising, another incentive to challenge questionable claims through NAD is that it costs significantly less than disputing advertisements in court.

BBB members pay $2,500 to file a complaint against a competitor, while non-members pay $6,000.

Alternatively, a company wishing to litigate is faced with $550 an hour in attorney's fees, which adds up fast considering it takes an average of six to 18 months to settle in court, according to NAD spokeswoman Linda Bean.

NAD says it provides a written report within 60 business days. More time is required should a firm disagree with the group's decision and choose to appeal.

Before filing a complaint against a competitor, marketers should consider NAD's proclivities in selecting and reviewing ads.

NAD is more likely to review an advertisement that affects consumers' health and safety, or reflects an emerging industry trend, Mallen said.

In both cases, NAD staff expect both literal and implied claims in the advertisement to be truthful, accurate and adequately supported by competent and reliable evidence.

When it requests scientific support for a claim in question, NAD aims to ensure the research is valid, applies directly to the product - and not just to ingredients in the product - and the methodology and assessments are consistent with "real world applicability" of the product according to its label, Mallen explained.

Advertising also must not "overstate or oversell or exaggerate the state of the science and the link between" the product and the research, Mallen said. "The communication needs to match the evidence."

In December 2007, NAD recommended that Preval modify or discontinue claims for its ActiFade Complete Age-Defying System - including "Can you Reverse Age Spots While You Sleep?" and "Look 5, 10, even 20 years younger" - which it said overstated the efficacy of the product (² Also see "NAD Challenges Preval’s Claims For ActiFade Complete Age-Defying System" - HBW Insight, 17 December, 2007., p. 7).

Earlier this month NAD targeted performance claims for the homeopathic component of Nature's Cure's two-part acne treatment (³ Also see "Nature’s Cure, NAD Disagree On Expectations For Homeopathic Acne Product" - HBW Insight, 10 March, 2008., p. 6).

NAD has said it also tends to focus on claims comparing a product to competing products, which it says warrant head-to-head testing.

In February, NAD upheld Triumph Pharmaceuticals' claims for its SmarthMouth Mouthwash including "Prevents bad breath for 12 hours (12 times more than any competing product)" and "No other mouthwash has been clinically proven to provide fresh breath for longer than one hour" (⁴ Also see "Oral Care Marketer Has Data To Back Up SmartMouth – NAD" - HBW Insight, 11 February, 2008., p. 11).

- Elizabeth Crawford (e.crawford@elsevier.com)

NAD Keeping An Eye On Performance Claims In Personal-Care Advertising

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