By: Meg Tierney and Katie Staba
Summary: The National Advertising Division (NAD) of the Better Business Bureau recently published a decision reminding advertisers that claims directed to sophisticated audiences are still subject to the same rules and guidelines as those claims directed to the general public and lay audiences. In Bausch Health US, LLC (INFUSE Contact Lenses) the NAD reviewed a number of claims in a Bausch & Lomb (B & L) brochure distributed to eye care professionals (ECPs) for single-use contact lenses.
Among the claims challenged by Alcon and reviewed by NAD were a number of claims related to the scientific properties and measurements of the lenses, incorporated into a bar graph that demonstrated the different measurements among B & L lenses and those of its competitors (specifically, comparable lenses produced by competitors Alcon and Johnson & Johnson). Under the chart, the brochure displayed various statements that the B & L lenses provide superior comfort, wearability, or eye health benefits. For example, a claim about B & L lenses having the “lowest modulus” (a measurement of the lens) was immediately accompanied by the statement “that ‘low modulus’ . . . provides a comfortable lens wearing experience.”
The NAD turned to a prior case involving B & L contact lenses where the NAD found that “lens property claims paired with a superiority claim . . . conveyed a comparative message requiring a showing that the demonstrated differences will be clinically significant (i.e., consumer relevant.)” In the present case, NAD found that the lens property claims were “clearly intertwined” with clinical benefits of such properties and thus required separate studies to support such claims—which B & L was unable to provide.
The NAD specifically noted that “while a sophisticated audience may understand nuanced and technical language, as well as industry-related data used in a claim . . ., all messages reasonably conveyed should be truthful and accurate.”
Key Takeaways: The key takeaway in this case is a simple one: that all claims by an advertiser, regardless of audience sophistication, should be supported by reliable evidence. The K&L Gates consumer protection and advertising group can help review your final advertising campaign for claim substantiation concerns and a wide variety of other advertising issues.
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