Earlier this month, NAD announced a decision in a challenge by P&G over Colgate Palmolive's packaging claims for Suavitel Fabric Conditioner. The decision is a good opportunity to review the standards for making "Up To" performance claims and for clear and conspicuous disclaimers on package labeling.
The challenger asserted the express claim on the front of the softener jug of "Up to 34 Loads*" was an unsubstantiated express claim. The advertiser used a disclaimer on the back of the package labeling that said "as measured for small loads." The challenger asserted the claim also falsely implied that consumer would get more loads out of Suavitel than competitive products.
FTC cases and guidance provide that "up to" claims should not rely on an unusual or "outlier" test result. The advertised result should be one that the average consumer can reasonably expect to achieve. NAD cases have opined the "up to" result must be actually experienced by a significant number of consumers, at least ten percent. NAD rejected the challenger's position that the industry standard was to look at usage for regular sized loads, concluding it was not NAD's role to determine an industry standard but instead looked to a reasonable consumer takeaway from the claim in context. NAD considered evidence that less than 10% of customers regularly or routinely wash using small loads so determined the "up to" claim had not been substantiated.
NAD also found the disclaimer that the "up to 34 loads" claim was measured in small loads not clear and conspicuous as it was on the back of the label in small type while the "up to" claim was on the front of the label. While dosing instructions may typically be appropriate for the back of the label, it was found to be material information necessary to qualify the "up to" claim. It leaves open the question as to when, if ever, a claim on a package label can be limited clearly and conspicuously with disclaimer information appearing on a different panel of the label. While everything is reviewed in the context as a whole, material qualifying information on a label typically should appear on the same panel as the claim.
