In This Issue:
- Native Deodorant False Ad Dismissed As Court Finds Plaintiff's Contradictions Don't Pass the Smell Test
- NAD SWIFT Pops Tempur-Pedic's Disparaging Sleep Number "Air Mattress" Claims
- Rascals Diapers Claims Don't Make the Cut at NAD
Native Deodorant False Ad Dismissed As Court Finds Plaintiff's Contradictions Don't Pass the Smell Test
A proposed class action alleging that Native Deodorant falsely advertises its "natural" deodorant as offering "72-hour odor protection" has been dismissed. The judge took issue with the plaintiff's pleadings and with inconsistencies in the claims.
The plaintiff alleged that upscale brand Native falsely misled consumers, particularly by claiming that its whole-body deodorant was clinically tested, when according to the plaintiff that had "never" been the case. Further, plaintiff alleged that the deodorant didn't contain any ingredients that could provide the promised 72-hour odor protection and that the product instructions didn't inspire any confidence that the 72-hour odor protection claims were true either, directing users to "Spray on as much (or as little) as you want" and to "Use it in the mornings…and repeat as needed throughout the day."
In dismissing the complaint, U.S. District Judge Denise Cote of the Southern District of New York found that plaintiff's allegations did not show that Native had materially misled consumers in violation of the New York General Business Law.
First, plaintiff erred by continuing to claim in the complaint that Native "never" clinically tested the deodorant. This was contradicted by a briefing filed after the first complaint revealing that the defendant had given plaintiff evidence that it had clinically tested the deodorant. Yet when plaintiff filed the first amended complaint, she continued to allege that the manufacturer "never" clinically tested the deodorant, while at the same time acknowledging that she received a heavily redacted document showing the results of the clinical trial that she alleged was "incomprehensible and in no way constitutes clinical proof."
Nonetheless, "a test, even if flawed, is still a test," said the court. Plaintiff could not lean into the initial allegation that the company never did a clinical test while admitting that it had provided plaintiff with documentation of such a test, all without providing any further allegations of other "materially misleading" conduct, reasoned the court.
The court further found that plaintiff's brief in opposition to the motion to dismiss continued down the contradiction path. In the brief, plaintiff acknowledged the study but argued that it failed to show that the deodorant protects against odor, only that it reduces odor compared with using no deodorant.
"So the allegation that the deodorant was never tested is not only conclusory, but it is also contradicted by the plaintiff herself, both in the FAC and in her brief in opposition to the motion," wrote the court.
Also in the brief, plaintiff attempted to reframe the claim as being about the disparity between Native's claim that the deodorant provides odor elimination and the study's conclusions that Native only provides odor reduction. This didn't make the cut either, and not just because plaintiff should have included it in the first amended complaint rather than in the brief, said the court. Accepting the argument that Native's deodorant only reduces but does not eliminate odor would mean accepting the allegation that a reasonable consumer would understand the "odor protection" claim to mean complete odor elimination for three days. It was not plausible that a reasonable consumer would conclude as much, concluded the court.
Finally, plaintiff's argument that defendant's failure to provide an unredacted version of the study implied the study had issues and did not support its claims was not supported by the requirements of New York General Business Law §§ 349 and 350 or the Federal Rules of Civil Procedure.
Key Takeaways
It's simple. There is no excuse for bad pleading and facially implausible briefing.
NAD SWIFT Pops Tempur-Pedic's Disparaging Sleep Number "Air Mattress" Claims
Tempur-Pedic advertising likened Sleep Number mattresses to the flimsy air mattresses used when extra guests come to visit. Was Tempur-Pedic making false and disparaging claims about Sleep Number's adjustable air smart mattresses? Sleep Number argued that it was and brought a National Advertising Division (NAD) SWIFT challenge.
The kerfuffle revolved around video and static advertisements that premium foam-based mattress manufacturer Tempur-Pedic posted on social media featuring unflattering imagery of a balloon inflating and deflating. The ads asked consumers to "Discover the truth behind Sleep Number" and repeatedly likened Sleep Number to an air mattress, even at one point calling the product "basically an air mattress."
Tempur-Pedic first sought to take the case out of SWIFT jurisdiction. It argued that the matter involved multiple issues and products and would require reviewing complex evidence. However, NAD found that the only question was whether Tempur-Pedic makes an unsupported disparaging claim equating Sleep Number beds to a "cheap and flimsy inflatable object."
On the substantive issue, Tempur-Pedic argued that its ads were not misleading because the Sleep Number beds do incorporate inflatable air bladders. It further argued that the ads merely inform consumers that Sleep Number beds use air bladders and add air to adjust firmness. Because Sleep Number beds inflate and deflate using air, calling them "basically an air mattress" was truthful and not misleading, it added.
NAD disagreed, finding that the ads conveyed a disparaging message that Sleep Number beds are the kind of cheap air mattresses that consumers would not use for their daily sleep needs. By describing Sleep Number beds with the "pejorative phrase…basically an air mattress" while insinuating that the company failed to disclose that its products inflate like a balloon, the company reasonably conveyed the message that Sleep Number mattresses are poor quality and uncomfortable.
Since Tempur-Pedic did not submit any evidence to support the claim that Sleep Number beds are "basically" the same quality as a "flimsy inflatable object like a cheap air mattress," NAD recommended that Tempur-Pedic discontinue the ads.
Key Takeaways
NAD continues to expand its willingness to accept SWIFT jurisdiction for a variety of claims. Indeed, allegations of false disparagement have found a welcoming home in this quick-review track, providing advertisers with a good reminder that denigrating claims must be truthful, accurate, and narrowly drawn.
Rascals Diapers Claims Don't Make the Cut at NAD
Were Rascals claims about the absorbency and consumer preference for its diapers substantiated? Procter & Gamble, which sells the Pampers and Luvs diaper brands, did not think so and brought their case to the National Advertising Division (NAD).
Among other claims, P&G challenged the company's claim that its "Hydro lockCore holds up to 25 x its weight" and that the diaper "absorbs 15 x its weight." It argued that the claims were exaggerated and the "dunk test" method used to substantiate them did not reflect real-world conditions because it allowed parts of the diaper to acquire fluid that would never occur during normal use. Rascals countered that the claims were fully substantiated and that because they were monadic rather than comparative the "dunk test" was fully appropriate.
NAD agreed with P&G, concluding that the "dunk test" was a sort of "torture test" that didn't match the type of real-world performance claims Rascals conveyed to consumers. These claims appeared alongside other real-world performance attributes: the Rascal diaper is possibly "the world's most absorbent diaper," it offers "Leak-Proof Protection," and it "[a]bsorbs and traps liquid to keep skin dry and help prevent rashes." As a result, in context reasonable consumers would understand that the dunk test message being conveyed was about real-world diaper absorption.
NAD next weighed in on a claim that appeared on the Rascals site: "'210,000+ 5-star reviews of Rascals Products'* Based on all reviews of Rascals diapers, training pants and wipes across websites globally, including incentivized and organic reviews." This claim had been previously voluntarily modified by Rascals from an original claim that had no disclosure and only stated that Rascals had "210,000+ 5-star reviews."
While NAD praised the modified claim to the extent it clarified the specific products to which it referred and explained it was globally based, nonetheless NAD ultimately found the advertiser lacked reliable evidence backing up the actual 210,000 figure.
From a disclosure perspective, NAD found the clarification that the five-star review claims were based on incentivized and organic reviews sufficient—even without indicating which were which. NAD further noted that the claim was not an aggregate star rating but rather a linear total of the number of five-star reviews received. Unlike with a star rating, NAD found a simple total is not affected by the inclusion of incentivized reviews as long as the fact that some are incentivized is disclosed and as long as when viewed individually, the review itself was clearly labeled. Accordingly, NAD found the advertiser's revised disclosure was sufficient albeit it did not appear sufficiently close to the claim itself, noting a hyperlink is not good enough.
Rascals ran into trouble, however, with the tally itself—it turns out that the numbers of five-star reviews by country were surprisingly similar one to the other—six countries listed between 17,740 and 17,749 reviews—and Rascals had not provided evidence there was no double counting. Rascals' lack of backup made NAD skeptical about the accuracy of the numbers.
Finally, P&G challenged the claim that "Parents are Happier with Rascals." While NAD agreed with Rascals that this is a subjective claim, it concluded that when a subjective claim like this one uses comparative language, it can change a subjective expression of opinion into a preference claim. Rascals was making a brandwide preference claim that consumers are "more happy" about Rascals diapers than about other brands. Thus, Rascals had to support the claim with data showing preference over at least 85% of competing brands, which was not provided in the record. NAD found the claim unsupported and recommended it be discontinued.
Key Takeaways
One message of this case is that torture tests rarely work when they don't reflect real-world circumstances. More important perhaps is NAD's clarification of when incentivized reviews must be separated from organic reviews (when they are aggregated into a "rating" and the incentivized reviews affect the weight) and when it is OK to provide a total number—apparently if one is simply doing the math, even when not mentioning how many lower ratings a product may also have received.
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