Shock Doctor's Challenge to Competitor's Health and Safety Claims Upheld by NAD
By: RICHARD J. WEGENER
February 2004
Decision Criticizes Exaggerated Health And Safety Claims, Research Methodology And Endorsements. WIPSS Products, Inc. Brain Pad Head Gear, Case #4139 (02/06/04)
Background
Athletic mouthguards, once characterized by cheap, low-performance products, have evolved into high-performance sports safety equipment designed to protect the athlete’s teeth, jaw joint and brain. This dramatic change is the result of significant technical advancements and increased sports safety awareness and is reflected in the category’s advertising.
While advertising regulators have long recognized the need for adequate substantiation of health and safety claims because consumers are ill-equipped to know if such claims are true, not all mouthguard manufacturers have acted accordingly, sometimes taking liberties to get consumers’ attention with “scientific” explanations and questionable “endorsements” designed to make extraordinary claims believable. Here, the advertiser’s claims about its Brain Pad® mouthguard were so extraordinary that they could not escape challenge. Advertising for the product stated that it: (1) “Drastically” reduces concussions, (2) Increases strength by 32%, and (3) Is endorsed by over 200 separate organizations around the world.
In a decision spanning more than thirty pages, perhaps the longest decision ever issued by the NAD, each of the challenged claims was declared unsubstantiated and “out-of-bounds.”
“Drastically” Reduces Concussions
While the NAD found evidence to support a claim that mouthguards can reduce the risk of concussions due to lower-jaw impacts, it recommended that the advertiser discontinue or modify the claim that the Brain Pad “drastically” reduces concussions. The evidence offered to substantiate the degree of reduction in brain concussions did not reflect that conclusion. NAD also threw a penalty flag in response to the advertisers’ related claims that all upper mouthguards “facilitate” or “induce” concussions.
Increases Strength
The NAD further determined that, although some degree of increased strength may be attributable to the fact that a mouthguard allows athletes to more safely “clench” their teeth, the evidence relied upon was insufficient to provide a reasonable basis for the advertisers’ specifically quantified “32%” increased strength claims and recommended that these claims be modified. In an environment marked by troubling allegations of steroid use in Major League Baseball, the NAD wasted little time in ordering the advertiser to discontinue performance claims that linked baseball batting power and hitting distance to Brain Pad use.
Endorsement Claims
Not only did Brain Pad advertising mislead consumers to believe that it had the endorsement of over 200 separate organizations from around the world, but none of the substantiation offered for the claim reflected the opinion of the members of these organizations. And to the extent that certain of the endorsements were from the professional or expert staff of the organizations, there was no indication that they had conducted the kind of tests that experts would recognize as a valid basis for their opinion. As such, the endorsements did not meet the “black letter” criteria established by the Federal Trade Commission in a number of proceedings, including Eskimo Pie Corp., 120 F.T.C. 312 (1995) and Black & Decker (U.S.) Inc., 113 F.T.C. 63 (1990).
The NAD recommended that, with respect to the challenged endorsements, the advertiser modify its claim, “Endorsed and Recommended in over 200 Countries by Sports Organizations,” so as to limit it to the number of current and valid endorsements by the actual number of organizations, rather than simply the number of countries in which these organizations or its members reside. Further, the NAD recommended that, pursuant to FTC Guidelines, the advertiser discontinue its claim, on product packaging and on its website, that its product is “the official mouthpiece” of numerous listed organizations.
Implications
The archives of the NAD from 1972 to present contain a rich heritage of advertising challenges, yielding decisions both short and long. The fact that this opinion is the most voluminous in recent history reflects both the number and seriousness of the advertiser’s missteps, as well as NAD’s desire to again reiterate - in painstaking detail - that advertising is not a sport or game. Advertisers must have a “reasonable basis” for all health and safety claims before they are made.
Fredrikson & Byron represented Shock Doctor in this challenge.