Consumers are clamoring for more "natural" and "clean" personal care products – and while companies are meeting that demand, these claims can often put them at risk of being the subject of false advertising lawsuits and NAD challenges.
In a recent NAD case, SC Johnson & Sons ("SCJ") challenged advertising made in connection with Procter & Gamble's Native personal care products, including (among other claims) the words "simple" and "safe" used to describe its product ingredients.
Specifically, SCJ challenged use of "simple" in Native's tagline "Clean. Simple. Effective." and in reference to claims that the brand uses "simple ingredients," "simple & effective ingredients," and "simple ingredients you can understand at a glance." These claims, the Challenger argued, would be understood by consumers as meaning that the ingredients in Native products "are not complex and are minimally processed." Native said the use of "simple" in the tagline meant that the products contain fewer ingredients.
So, what does "simple" communicate? NAD considered Native's use of "simple" as both a tagline and to describe individual ingredients. The tagline on product packaging, and a chart explaining the product's individual ingredients, are visually separate, which NAD said would lead a reasonable consumer to understand "simple" as referring to the product as a whole – that Native products contain few or minimal ingredients.
However, the use of "simple" in "simple ingredients," NAD said, suggested something different. NAD concluded that this use could reasonably convey that the ingredients are not complex in their structure or composition, which was not supported by Native's evidence regarding the ingredients in its products, since they (according to SCJ's expert report, not disputed by the advertiser) "go through complex manufacturing and processing to refine them so that they no longer resemble the original simple ingredient at the start of the manufacturing process, or the simple ingredient stated on the label." Accordingly, NAD recommended that Native discontinue or modify its use of "simple ingredients" when describing such products.
The challenger also argued that Native's use of "safe" in statements such as "cruelty free, safe & simple products made without harsh ingredients," among others, implies that the product is safe even when used contrary to its intended use. NAD determined that one message reasonably conveyed by Native's monadic use of "safe" is that the product is safe when used as directed – and that it wasn't likely consumers would broadly interpret the claim to mean that the product is safe for all possible uses, including unintended ones, and misuse.
Native's use of "safe" in this context, NAD said, also further qualifies the meaning of "safe" to mean "without harmful ingredients." Native provided a declaration from experts regarding ingredient safety which NAD found to support the claims.
The take-away from this Decision? As always, context matters: the same word can communicate different messages in different contexts (textual, visual, etc.) and whatever message is reasonably communicated must be substantiated. Descriptors like "simple" and "safe" are powerful for consumers and, therefore, likely to be scrutinized by consumers and competitors alike.
The Procter & Gamble Company (Native Brand of Personal Care Products, Report #7277, NAD/CARU Case Reports (June 2024)
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.