At issue were certain claims made by GSK for its Citrucel laxative product. The National Advertising Division of the Council of Better Business Bureaus (“NAD”) recommended that the company modify or discontinue certain claims, re-opening a matter that was heard by NAD in 1994.
P&G, the maker of the Metamucil challenged the following claims:
“The Only Fiber For Regularity That WON’T CAUSE EXCESS GAS**”
- **Among the Top 5 National Brands. Based on laboratory testing. Individual results may vary.
- Citrucel (but not Metamucil) is “NON-FERMENTABLE.”
- Citrucel (but not Metamucil) “DOESN’T CAUSE EXCESS GAS.”
In 1994, NAD found that SmithKline Beecham (which then made Citrucel) could support claims that Citrucel does not ferment and does not cause excess gas provided that it disclosed that those claims were based on laboratory evidence. At that time, SmithKline Beecham agreed to follow NAD’s recommendation.
In 1997, P&G requested that NAD reopen the matter citing “extraordinary circumstances” in the form of new testing data which it claimed were contrary to NAD’s findings. NAD, however, determined that the “new” evidence offered by P&G did not constitute “extraordinary circumstances,” and denied P&G’s request. In its letter to P&G, NAD underscored the importance of finality to the self-regulatory process.
Here, P&G again requested that NAD re-open the matter and claimed that the science related to psyllium and digestion has now shown that psyllium does not ferment, effectively contradicting NAD’s earlier decision. For its part, GSK argued that allowing this challenge to go forward in the absence of a shift in scientific consensus would compromise the integrity of the self-regulatory system.
In its press release NAD stated that “NAD determined that the existence of human studies directly related to the digestion of fiber in the human body – compared to the additional laboratory testing at issue in P&G’s first request – satisfied the procedural requirement of ‘extraordinary circumstances’ and considered the challenged claims on their merits.”
After review of the evidence in the record, NAD determined that the advertiser showed a reasonable basis for the claim that Citrucel (but not Metamucil) is “NON-FERMENTABLE” and that Citrucel does not cause excess gas. However, NAD also concluded that the advertiser did not demonstrate a reasonable basis for the claim that Metamucil always causes excess gas.
NAD also recommended that GSK “discontinue the ‘doesn’t cause gas’ claim in a comparison chart or modify the claim to avoid conveying the message that Metamucil always causes excess gas. NAD also recommended that the advertiser discontinue the claim “The Only Fiber For Regularity that WON’T CAUSE EXCESS GAS*” or modify it to avoid conveying a message that Citrucel is the only product with methylcellulose.
In its advertiser’s statement, GSK said the company “is a strong supporter of the NAD self-regulatory process and will take NAD’s recommendations into account.”
Key Takeaway: While NAD’s decisions are generally final and not subject to a party advancing a new theory or evidence, NAD may revisit its determinations if presented with compelling evidence that constitutes “extraordinary circumstances.”