Departure From Industry Standard Testing Arrives at NAD Disapproval

Advertising Law

The National Advertising Division vacuumed up a dispute over cleaning claims in a challenge brought by Dyson Inc. against competitor SharkNinja LLC.

Dyson challenged the truthfulness and accuracy of SharkNinja’s claims for its Powered Lift-Away (PLA) Speed vacuum cleaner, including that the vacuum offers “Better Overall Bare Floor Cleaning” than Dyson’s product, is the “Best Overall Bare Floor Cleaning Upright” and “on hard floors … gives you better overall bare floor cleaning than any upright you can buy.”

The infomercial, packaging and website advertising claims made misleading performance comparisons, Dyson argued, and were not based on the industry standard test to assess bare floor cleaning performance, ASTM F2607.

SharkNinja countered that it used the industry standard with a twist: the addition of Cheerios to represent large debris. The advertiser then conducted two proprietary tests to measure vacuum performance along the perimeter of a room, as well as its pickup on tile flooring with grout, aggregating the results.

Considering whether it was appropriate for the advertiser to deviate from the industry standard test method for measuring the hard-surface floor-cleaning ability of household/commercial vacuum cleaners, the NAD concluded that “in context, the advertiser’s ‘overall’ claim is not a good fit for its claim ‘Best Overall Bare Floor Cleaning Upright.’”

In SharkNinja’s infomercial, the company’s CEO, Mark Rosen, demonstrates the vacuum’s performance on a bare floor surface. While vacuuming, he states, “On hard floors, Amy, this Shark Powered Lift-Away Speed with DuoClean gives you better overall bare floor cleaning than any upright you can buy,” while on-screen text reads “Best Overall Bare Floor Cleaning Upright.” Later in the ad, the vacuum is shown cleaning along edges and on a creviced floor as large text flashes on the screen to emphasize the words one at a time: “The Best,” “Overall” and “Bare Floor,” while the voice-over states, “The Powered Lift-Away is the best overall bare floor cleaning upright.”

“NAD determined that a reasonable consumer would expect that these strong ‘overall’ claims are based on an independent industry measure and not on averaging various metrics consisting of modified industry standard and non-industry standard testing,” according to the decision. “Although the voice-over calls out large particles, small particles, crevices and grout lines and along edges the second time the claim appears, NAD was not persuaded that consumers would understand that the advertiser’s claim is based on aggregating various tests for different types of bare floor cleaning performance.”

SharkNinja’s argument that consumers would not fully understand or be familiar with the relevant ASTM standard missed the point, the self-regulatory body explained. The issue is not whether consumers understand the particulars of the industry testing; instead, the NAD focused on whether consumers would expect a broad superiority claim to be based on industry standard testing.

“Here, an industry standard test is available and has long been in place to support a comparative bare floor cleaning claim,” the NAD said. “The ASTM’s F2607 is the standard for measuring the hard surface floor-cleaning ability of household/commercial vacuum cleaners and it has been in force, and heavily relied on, for over a decade.”

In the absence of claim support showing that SharkNinja’s vacuum performed better than its competitors on the relevant industry-standard test, the NAD expressed concern that the “overall” superior performance claims were lacking in support and recommended they be discontinued.

“While Shark’s proprietary testing might represent real-world conditions as experienced by a consumer, including cleaning on edges and crevices and pickup of large debris, NAD was not persuaded that the combination of the testing (and the weighting of the testing when aggregated) could support a ‘Best Overall Bare Floor Cleaning’ claim,” the NAD said.

The advertiser’s proprietary testing might support a more narrowly tailored claim, if it were “carefully crafted and expressly limited to avoid conveying the unsupported message that the PLA cleans bare floors better than competing vacuums according to recognized industry measures of vacuum cleaning performance,” the NAD added.

Other claims challenged by Dyson (including a claim of “more pure, raw suction at the hose than the Dyson Cinetic Big Ball” and an implied claim that Shark’s technology is likely to help allergy symptoms improve) should also be discontinued, the NAD recommended, although it found a “more suction” claim did not need any modifications.

To read the NAD’s press release about the decision, click here.

Why it matters: An important takeaway for advertisers: the dangers of departing from industry standard testing, particularly when it has been in place for an extended period of time. “The NAD will carefully scrutinize departures from industry standard testing where a particular industry standard test has long been established as the means for substantiating the claim at hand,” the self-regulatory body wrote. In the case at hand, SharkNinja was unable to overcome this presumption when it modified the long-standing ASTM F2607 test and must now modify its advertising.



pursuant to New York DR 2-101(f)

© 2024 Manatt, Phelps & Phillips, LLP.

All rights reserved