Before making product claims… 5 lessons learned from the NAD
23 May 2015
Published March 16, 2015 by Happi
By Raqiyyah R. Pippins
The National Advertising Division is an arm of the Advertising Self-Regulatory Council (ASRC) of the Better Business Bureau. NAD administers an industry-sponsored self-regulatory program that reviews national advertising for truthfulness and accuracy, typically applying the same standards employed by the Federal Trade Commission and courts when reviewing advertising claims.
Federal law prohibits advertisers from making claims about consumer opinion, including through consumer testimonials, that could not be substantiated if made directly by the advertiser.
[i]t is not enough that a [claim or] testimonial represent the honest opinion of the endorser.
Based on 2014 NAD decisions involving sensory studies, advertisers should be sure to follow these five basic guidelines:
3. Refrain from asking substantially similar questions regarding the same product attribute. NAD has rejected studies that contain “multiple and similarly-worded questions” regarding the product attribute touted in advertising, especially where the questions precede the one upon which the advertiser ultimately relies for its adverting claim. NAD’s primary concern is that the preceding questions regarding the attribute may “improperly influence the answers” to the question relied upon by the advertiser. The ASTM Guide discusses similar concerns, while also warning that “asking about an attribute in more than one way increases the risk of results that could be inconsistent, for example a difference in preference without a difference in liking.”
4. Exclude “double-barreled” questions. A double-barreled question is a compound question asking a respondent about more than one attribute, simultaneously (e.g., “does this product leave your skin soft and smooth” in lieu of separately asking “does this product leave your skin soft” and “does this product leave your skin smooth”). While double-barreled questions may shorten a questionnaire, they are insufficient to substantiate advertising claims. NAD reiterated this principle last spring, when it issued a decision noting that an advertiser’s consumer study was “unreliable” because, among other things, “the participants were asked a double-barreled question for their rating, combining two attributes into one question.”
5. Collect participant responses at each time period that marketing desires to reference in advertising. Questionnaires that ask consumers to recall product experiences at time points earlier than when they’re provided the questionnaire can lead NAD to question the test’s ability to ensure that participants accurately recalled their opinions. For example, in one decision, NAD determined that the advertiser’s questionnaire was insufficient to substantiate several of the advertiser’s claims because the participants’ answers could have been affected over time by “faded memory.” The same decision offered ways to mitigate the risk of faded recall in future studies noting that the advertiser could have (1) provided participants with something to record their thoughts throughout the study, (2) encouraged them to record their thoughts contemporaneously, and (3) collected any written notes to confirm that participants’ answers matched their contemporaneous sentiments. According to NAD, “such actions would have helped the subjects in accurately answering their surveys, allowed the advertiser to verify the accuracy of its survey, and avoided the potential bias [from]… exposing the subject to the ultimate question they will be answering prior to completing the product usage.”
Failure to adhere to these lessons could prevent NAD from giving much weight to a study offered as support for use of consumer testimonials in an advertising campaign. Embracing them can help protect a company’s investment in a sensory study, while enabling it to capitalize on the benefits of effectively (and legally) sharing consumer testimonials with prospective consumers.
 FTC Endorsement Guides http://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements.
Raqiyyah Pippins is a senior associate in the firm’s Washington, D.C. office. She focuses her practice on food and drug law and consumer law matters, including advertising, FDA-regulated product labeling, Rx-to-OTC switches, and related regulatory and litigation considerations. Pippins counsels and defends companies that are engaged in the development, marketing, import and/or export of food, drugs, cosmetics, medical devices, biologics and veterinary products.
Pippins has particular experience representing companies in advertising challenges and defending food and pharmaceutical companies in legal investigations conducted by the Food and Drug Administration (FDA), the Federal Trade Commission (FTC), and state agencies concerning product marketing practices. She also advises companies on mechanisms for limiting the risk of marketing-related challenges by regulators or private litigants, with a primary focus on minimizing the risk associated with the development, labeling and marketing of FDA-regulated products.
More info: Raqiyyah Pippins, Tel: ; Email: firstname.lastname@example.org; Website: www.kelleydrye.com