In Four Fast-Track SWIFT Cases, National Advertising Division Recommends Advertiser Claims be Modified or Discontinued; Three Decisions to be Appealed

NEW YORK, Dec. 9, 2021 /PRNewswire/ -- The National Advertising Division (NAD) of BBB National Programs closed four Fast-Track SWIFT cases in November. In these cases:

• AT&T Services, Inc. challenged the claims "UNLIMITED" and "UNLTD" in Mint Mobile, LLC's online and mobile advertisements for its high-speed data plan;
• Bayer HealthCare LLC challenged the prominence or sufficiency of disclosures in video advertising by PLx Pharma Inc. for its Vazalore aspirin product;
• The North American Olive Oil Association (NAOOA) challenged comparative claims about other olive oils sold in the US, made by olive oil manufacturer Brightland, Inc.; and
• The Procter & Gamble Company (P&G) challenged "#1 Brand" claims made by Perrigo Company, PLC in print and online advertising for its Plackers brand dental floss products.

Fast-Track SWIFT is an expedited NAD challenge process designed for single-issue advertising cases.

AT&T Services, Inc. v. Mint Mobile, LLC
AT&T challenged several advertisements for Mint's "unlimited" prepaid 4G LTE/5G plans. The Mint unlimited data plan offers unlimited talk and text and 35GB of 4G LTE/5G data per month. After the data cap is met, the data delivery is throttled down to speeds of 2G. Mint will appeal NAD's decision.

During the proceeding, Mint voluntarily permanently discontinued the claims "5G • 4G LTE DATA UNLIMITED" and "UNLIMITED DATA" from its advertising. Further, NAD determined that the challenged "UNLIMINTED" claim is not an express claim capable of review under SWIFT. Accordingly, NAD did not review these claims on the merits.

NAD determined that the claims "UNLIMITED" and "UNLTD" were express claims appropriate for Fast-Track SWIFT because the single issue was whether the claim "unlimited" was substantiated.

NAD concluded that the claims "UNLIMITED" and "UNLTD" in the challenged advertising refer to the plan's data benefits. Although the disclosure states "Unlimited plan customers using > 35GB/mo will experience slower speeds. Videos stream at 480p," NAD noted that an advertiser cannot use a disclosure to contradict a message reasonably conveyed by the underlying claim. Because Mint's headlines "UNLIMITED" and "UNLTD" describe an unlimited data plan, any disclosure that limits basic data usage on the plan contradicts this message and conflicts with consumer expectations of an unlimited plan.

As such, NAD concluded that Mint's disclosure here, or any disclosure that an "unlimited" data plan has caps that limit use of the plan for most basic data activities, contradicts the message that the plan offers unlimited data.

Therefore, NAD recommended that Mint discontinue the use of the "UNLIMITED" and "UNLTD" headlines in its advertising or modify them to clearly communicate that its plan does not offer unlimited high-speed data.

In its advertiser statement, Mint stated that it "will appeal NAD's decision" based on its belief that NAD's determination regarding the message conveyed by Mint Mobile's use of 'UNLIMITED' and 'UNLTD' in its advertising "runs counter to the facts and disclosures presented in this case."

Bayer Healthcare, LLC v. PLx Pharma Inc.
Bayer brought a challenge relating to a television commercial, which claims that "New Vazalore is the first liquid-filled aspirin capsule clinically shown to cause fewer ulcers than plain aspirin." While this claim is made orally and while an animated depiction of Vazalore's delivery mechanism plays, the commercial includes a written disclosure that appears on the screen for three seconds stating "In a clinical study, compared to 325 mg immediate-release aspirin after 7 days of treatment. Dramatization." PLx Pharma will appeal NAD's decision.

NAD determined that this challenge was appropriate for Fast-Track SWIFT because the issue was limited to the prominence and sufficiency of the disclosure used in PLx's commercial for Vazalore.

In a prior NAD decision, support for the gastrointestinal health claims associated with Vazalore only concerned the 325mg dosage and not the 81mg dosage. Further, the advertiser did not submit evidence specific to the 81mg dosage in the current case.

NAD concluded that the net impression of the commercial is that it is an advertisement for the Vazalore line of aspirin products. Specifically, the claim that Vazalore is "clinically shown to cause fewer ulcers than plain aspirin" is reasonably interpreted as a claim about all Vazalore products, i.e., the 81mg dosage and the 325mg dosage.

Therefore, NAD recommended that the advertiser modify the commercial to clearly and conspicuously disclose that Vazalore 325mg is "clinically shown to cause fewer ulcers than plain aspirin," as part of the main claim to avoid reasonably conveying the unsupported message that Vazalore 81mg has also been clinically proven to provide a GI health benefit.

In its advertiser statement, PLx Pharma stated that it "intends to file an appeal" based on its belief that "all aspects of its Vazalore commercial . . . are supported by competent and reliable scientific evidence." The advertiser further contended that the "commercial's disclosures were displayed clearly and conspicuously and are of the same size, duration, and nature that NAD and NARB have approved for other OTC drugs" and that "NAD's consideration of this matter on the SWIFT track was procedurally unfair" for several reasons.

North American Olive Oil Association v. Brightland, Inc.
NAOOA challenged certain claims made by Brightland. Specifically, NAOOA challenged the statement "most of the olive oil ('70%' or 'north of 70%') sold in the US is rotten, rancid, or adulterated" causing nausea and stomach aches. These claims appeared on Brightland's website and social media pages and in articles about the company and its founder in print and online publications.

NAD determined that the challenged statements and testimonials are advertising because their purpose was to induce consumers to purchase a particular product and were appropriate for Fast-Track SWIFT because the statements are express claims presenting the single issue of the advertiser's alleged disparagement of other olive oils sold in the US.

During the proceeding, Brightland voluntarily permanently discontinued the claim that "70% of olive oils sold in the US is rotten, rancid, or adulterated." Therefore, NAD did not review this claim on its merits.

NAD determined that the statements in the "Founder's Note" section of Brightland's website conveyed the unsupported and disparaging message that other olive oils can cause nausea and adverse health effects and recommended that those statements be discontinued.

NAD noted that nothing in its decision precludes the advertiser from using the founder's personal experiences in its advertising, provided that such advertising does not convey any unsupported or misleading messages about Brightland olive oil or other olive oils.

Further, NAD found that statements by Brightland's founder in several interviews in various print and online media were advertising and recommended that the advertiser discontinue the claims that other olive oils are "rancid, rotten, or adulterated" or cause nausea, including removing any links to the articles containing the challenged claims from its website and refraining from using or citing the challenged claims in future advertising.

In its advertiser statement, Brightland expressed its disagreement with NAD's position regarding messages conveyed by the Founder's Note but stated that "in deference to the self-regulatory process, however, Brightland has modified the language of the Founder's Note and will take NAD's comments into account." The advertiser further stated that it disagrees that NAD has jurisdiction over the founder's statements in third-party articles, "but is in the process of removing links to and posts about these articles, if any exist, from its website and/or social media."

The Procter & Gamble Company v. Perrigo Company, PLC
P&G challenged Perrigo's advertising for its Plackers brand dental floss product which claims that it is the "#1 Brand in Flossers."  Perrigo will appeal NAD's decision.

NAD determined that this challenge was appropriate for Fast-Track SWIFT because it presented the single, well-defined issue of whether the advertiser's "#1 Brand in Flossers" claim was supported and that this issue could be resolved without review of complex evidence or legal argument.

NAD noted that a #1 brand claim must refer to a category that is appropriately defined and readily recognizable to the consumer. NAD concluded that Perrigo failed to establish that the term "flosser" refers to a clearly bounded product category in the market or that the universe it claims to have measured will be understood as such by the consumer. In so finding, NAD noted that the universe of products to which a "#1 Brand in Flossers" claim refers is subject to multiple interpretations and the context in which the claim appears does not do anything to illuminate the product category and scope of the "#1 Brand" claim.

NAD also examined the sales data submitted by both parties, finding that simple (not equivalized) unit sales was the appropriate metric for comparison and the one that was most consistent with the central message of the "#1 Brand" claim here, namely that it is the brand more often purchased than others. In the absence of acceptable unit sales data from Perrigo, NAD determined that the advertiser's "#1 Brand" claim was not supported on that basis and recommended that the claim be discontinued.

In its advertiser statement, Perrigo stated that it "will appeal NAD's decision" based on its belief that the decision "fails to justify a preference for un-equivalized unit sales data for flossers," and further stated that it "provided more factual information for its [equivalized and unequivalized] sales data – including date ranges and unit measurements – than P&G did for any of the sales data it offered." The advertiser also expressed its belief that NAD's decision "creates new, distinct categories of 'floss picks' versus 'flossers' even though P&G itself categorizes its 'floss picks' as 'flossers' in its own marketing."

Learn more about the NAD Fast-Track SWIFT challenge process and how to file a challenge. All BBB National Programs case decision summaries can be found in the case decision library. For the full text of NAD, NARB, and CARU decisions, subscribe to the online archive. 

About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. The non-profit organization creates a fairer playing field for businesses and a better experience for consumers through the development and delivery of effective third-party accountability and dispute resolution programs. Embracing its role as an independent organization since the restructuring of the Council of Better Business Bureaus in June 2019, BBB National Programs today oversees more than a dozen leading national industry self-regulation programs, and continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-directed marketing, and privacy. To learn more, visit bbbprograms.org.

About the National Advertising Division: The National Advertising Division (NAD), a division of BBB National Programs, provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.    

SOURCE National Advertising Division