For the second time, an NAD compliance proceeding was held to evaluate the advertising of Dr. Frank’s Joint Pain Relief for Dogs and Cats. In July 2008, NAD concluded that Dr. Frank’s did not provide adequate evidence substantiating its claims that a simple spray of the product in pets’ water would alleviate their joint pain. NAD recommended that various claims made by Dr. Frank’s about the efficacy of the product be discontinued. Dr. Frank’s agreed to implement NAD’s recommendations.
In an initial compliance proceeding, NAD noted that Dr. Frank’s ads were still being shown on television and were still unchanged on the website. Dr. Frank’s informed the NAD that compliance was in progress. NAD accepted the explanation and closed the compliance proceeding.
Fast forward several months. Imagine the surprise of NAD when an unaltered Dr. Frank’s commercial appeared on television. In response, NAD instigated a second compliance proceeding. Dr. Frank’s stated that the commercial was actually “new” because it was based on new scientific developments and a recent study.
In its case report, NAD noted that it did a side-by-side comparison of the two advertisements, and that they were, in fact, identical. NAD also pointed out that it is “black letter advertising law” that substantiation must exist at the time ads are disseminated (and cited six of their own cases for the proposition). Therefore, Dr. Frank’s after-the-fact study was useless for purposes of NAD compliance. As a result of the advertiser failing to change its ads as promised, NAD stated that it would refer the matter to the appropriate government agencies for potential enforcement action.
Advertisers should take special notice of NAD’s position: even if an advertiser is able to substantiate a claim going forward, it doesn’t matter for purposes of NAD enforcement and recommendations for government intervention if the ad ran prior to the availability of the substantiation. Similarly, the FTC’s policy statement regarding advertising substantiation states that firms should have substantiation before disseminating a claim and that “as a matter of law, firms lacking a reasonable basis before an ad is disseminated violate Section 5 of the FTC Act and are subject to prosecution.” The FTC maintains that additional substantiating evidence may be considered, but cannot be used as a substitute for an advertiser’s prior substantiation.
