When I blogged about claims that denigrate competitors just last week, little did I know that another relevant decision was about to be released. And so it has, and I'm back to blog about the new Decision, which involves two of the same parties and provides some additional insights.
In the new Decision, NAD evaluated claims for the Dr. Squatch brand of personal care products for men. The challenger, as in the Jukebox soap case, was Unilever. At issue in this case were a number of claims by Dr. Squatch distinguishing its products from “traditional” personal care products. Pretty much all of these claims were some variation of this one: “We never use the harmful ingredients or harsh chemicals often used by traditional brands. In fact, we have a full roster of no-go ingredients that we call our Sh*t List.” Needless to say, the challenger took umbrage at Dr Squatch's advertising, arguing that “the words and images in these ads give rise to the denigrating and false claim that competing personal care products are caustic, harmful, and even dangerous.” And Dr Squatch defended it, claiming that its ads are "comedic puffery, boasts about the natural character of Dr. Squatch's products, or set forth substantiated factual statements that distinguish Dr. Squatch's natural products from synthetic competitors.” A pretty classic advertising dispute.
Although Dr Squatch agreed to permanently discontinue a number of the claims – like calling the ingredients in competitors' products “petroleum-based greaser found in antifreeze” – it didn't discontinue them all and NAD reviewed the remaining ones. NAD's findings are noteworthy if a little surprising (at least to me). First, NAD okayed both the “no harmful ingredients” claim and the “Sh*t List” characterization, finding each to be “a simple, truthful monadic claim about the general qualities of Dr. Squatch's products, used to educate consumers who are interested in the ingredients in personal care products.” It also okayed “blocks out B.O. without harsh chemicals” as a truthful monadic claim, which Dr Squatch substantiated by showing that its products don't include the Sh*t List ingredients and by toxicology reports.
Similarly, NAD determined that the “tongue in cheek” claim “the personal care industry needs cleaning” would likely be understood as “a high-level reference to Dr. Squatch's commitment to products with natural ingredients” and not a message that competing products are harmful. In addition, NAD okayed a video titled “Meet our Sh*t List” featuring a man being doused with green slime, with text superimposed saying “Dioxane,” “Parabens,” and “Sodium Lauryl Sulfate.” To NAD, this “over-the-top visual does not communicate a comparative message, rather it humorously exaggerates the ingredients it excludes, visually referencing artificial colors.”
What NAD did not like was the skull and crossbones imagery, which “when displayed in the context of the ‘Sh*t List,' further conveys a message that the ingredients on the ‘Sh*t List' are harmful.” Ya think? Also, NAD didn't like a social post showing a gloved scientist pouring neon liquids into beakers. There, NAD determined that that image, shown while calling out certain ingredients in a comparative context (“I'm never going back to aluminum deodorant again”), followed by a reference to these ingredients as “junk” and showing a consumer throwing away competing brands, “communicates the implied message that competing deodorant brands are caustic and full of dangerous chemicals and at a minimum, useless.” NAD also recommended that the advertiser discontinue the claim “don't hit the showers with neon goop that looks like a sports drink.” (Why is it worse to look like a sports drink than be on a “sh*t list”?)
So, what's the takeaway here? Honestly, I'm not entirely sure because touting the absence of “harmful ingredients” (and similar claims) has, in other cases, been found to be falsely denigrating in the absence of evidence that competitive products with those ingredients are more harmful than the advertiser's. Is NAD going in a different direction on these types of claims? Or was just the context here --whether because of the humor or the product category at issue – the determining factor? Time will tell. Certainly, monadic(ish) claims about your own ingredients – what is, or is not, in your product -- are more likely to fly than explicitly comparatively denigrating ones. It's also important to have a reasonable (substantiated) basis for touting what your product does and doesn't include. Humor helps insulate a claim too because over-the-top visuals can effectively soften the blow of a disparaging statement… but not always: how the visuals change the meaning of text or voiceover will vary depending on the image (here, skull & crossbones=no good; green slime=okay).
Dr. Squatch, LLC (Dr. Squatch Personal Care Products for Men), Report #7225, NAD/CARU Case Reports (December 2023).
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