Earlier this month, NAD issued its first decision under its Fast-Track SWIFT program, its expedited review track for single well-defined advertising issues. (Here are more details on NAD’s Fast-Track SWIFT program.) In its first substantive Fast-Track SWIFT decision, NAD dealt with a dispute between energy bar manufacturers Kind and Clif and reviewed the claim “A Better Performing Bar–Clif Bar For Sustained Energy,” which appeared as the top AdWords result for internet keyword searches for “Kind Bars” and “energy bars.”
Kind argued that this constitutes an express claim comparing the performance of Clif Energy Bars (either generally or with respect to sustained energy) to the performance of Kind Bars or all energy bars on the market, that must be supported by head-to-head product testing. Clif argued that the claim was not appropriate for SWIFT treatment because the challenged claim was too complex. Specifically, Clif argued that expert testimony and a consumer perception survey were necessary to determine whether the word “better” conveyed a comparative performance message or was merely an expression of the advertiser’s opinion of its product, and that these questions could not be obtained within the shortened SWIFT timeline. NAD concluded that the claims were appropriate for SWIFT treatment because they did not require NAD to evaluate complicated product testing (the advertiser did not argue that it had product testing to support a comparative performance claim), and any legal arguments were limited because the challenge involved a single claim in a single context.
When analyzing the claim conveyed in the advertising, NAD noted that there was no imagery in the advertising, simply the claim, “A Better Performing Bar–Clif Bar For Sustained Energy.” Clif argued that the “better” claim constituted puffery and was not tied to the “sustained energy” claim. NAD disagreed and found that the claim, when viewed as a whole, tied the word “better” to the objectively measurable performance attribute “sustained energy.” Further, because the claim appeared in search results, without additional context or visual cues, the takeaway from the express message was that Clif Bars are better than Kind Bars or other energy bars at providing sustained energy. In addition, given that the statement appeared in response to online searches for the phrase “Kind Bars,” NAD found that this increased the likelihood that consumers searching for information about Kind bars will reasonably take away a comparative message when Clif claims it is a “better performing bar.”
NAD concluded that the evidence submitted by the advertiser was insufficient to support the unqualified claim that Clif Bars are better than Kind Bars or other energy bars at providing sustained energy. Although the advertiser submitted evidence that its product helped optimize performance during intense sustained activity, NAD determined that this did not support the unqualified comparative claim that Clif is “better” at providing sustained energy and therefore the substantiation was not a good fit for the support provided. Accordingly, NAD recommended that the advertiser discontinue its AdWords claim, “A Better Performing Bar–Clif Bar For Sustained Energy” in response to internet searches for “Kind Bars” and “energy bars.”
Importantly, NAD limited its decision to the claim in the context in which it was challenged, an online AdWords (now known as Google Ads) result, and this context was a substantial factor in NAD’s determination. However, the decision highlights NAD’s strict approach when analyzing superiority claims in comparative advertising. It also demonstrates the type of claims that NAD is willing to review in its new expedited track program, as well as its response to advertisers’ challenging the applicability of the Fast-Track SWIFT process.
NAD is also developing a new, complex-track program to handle challenges to advertising that require review of complex claim substantiation. To that end, NAD recently hosted a workshop where stakeholders provided feedback and input on the new complex-track process, and it is taking this feedback into account in developing the new program. In the meantime, we can expect to see more, new Fast-Track SWIFT cases.