Advertising Law Blog

NAD noted that the advertiser’s claims conveyed “a broad and unqualified message about the superior efficacy” of Aleve, not limited to a particular type or intensity of pain.  Further, NAD determined that a reasonable consumer may understand the claims to mean that Aleve has been proven to provide higher quality pain relief than Tylenol Extra Strength, Johnson & Johnson’s best-selling product.  Therefore, in order to substantiate its broad claims, NAD held that Bayer must be able to support Aleve’s claimed superiority against the entire Tylenol line, including Tylenol Extra Strength.

Ultimately, NAD determined that the studies submitted by Bayer did not do so.  For example, NAD found it problematic that every study offered by the advertiser tested a single dose of each product over 12 hours—yet a single dose of Tylenol Extra Strength does not, and is not intended to, last 12 hours.  NAD also had concerns about inconsistencies among the studies’ results.

Bayer, expressing disappointment with the decision, has said it will appeal NAD’s findings to the National Advertising Review Board.

Takeaway: In order to provide a reasonable basis for health-related claims, advertisers must rely upon competent and reliable scientific evidence.  Further, advertisers are obligated to support all reasonable consumer interpretations of their claims, not just the messages they intended to convey.   This can be a significant burden when a marketer makes broad and unqualified superiority claims.  NAD emphasized in its decision that advertisers’ studies must be “a good fit” for the challenged claims—“specifically, the trial results should translate into meaningful benefits for consumers that relate directly to the performance attributes promised by the advertising.”