NAD: Allergy Medication Too Smart for Its Own Good

Advertising Law

Claims touting an allergy medication as “smart” or “wise” conferred a clinically meaningful benefit as compared to a competitor’s product and should be discontinued, the National Advertising Division (NAD) recently recommended.

Johnson & Johnson, the maker of Zyrtec, challenged claims made by Chattem Inc. for its Xyzal Allergy 24HR medication, including “A Smart Formulation is NOW a Wise OTC Choice for Allergy Sufferers,” “Wisely Designed to be Different,” “See why a Smart Molecule matters” and “Delivers Potency With a Smart Design.”

These statements were paired with claims about Xyzal’s increased binding ability and absence of dextrocetirizine and were accompanied by the image of an owl in a lab coat alongside a blackboard with scientific drawings. A disclaimer acknowledged that there is no known clinical significance to Xyzal’s claims about binding ability or the lack of dextrocetirizine.

The challenger argued that the claims and imagery reasonably communicated the message that Xyzal is made smarter, wiser and better than Zyrtec and other competitors because of its greater binding ability and dextrocetirizine-free makeup.

Chattem countered that the claims—which were featured only in healthcare professional (HCP)-directed advertising—simply highlighted the unique delivery method and pharmacological characteristics of Xyzal and were not performance claims.

But after examining the overall net impression created by the advertisements as a whole, the NAD sided with the challenger.

“Notwithstanding the lighthearted images of the owl in the lab coat and the ‘wise’ references, playing off of the owl, NAD determined that the challenged claims … taken together with the imagery of the molecules, reasonably convey the message that Xyzal is better or more efficacious than Zyrtec because of its pharmacological design,” the self-regulatory body wrote. “The use of a ‘wise’ owl and the advertising’s emphasis on a ‘smart design’ help convey the message that Xyzal is superior to Zyrtec in a meaningful way.”

While the NAD recognized that the target audience’s degree of sophistication is a factor in determining the reasonable messages conveyed by the advertising—in this case, medical professionals—it also noted that “it is equally true that even a sophisticated audience is entitled to truthful and accurate messages about advertised products.”

“Chattem is not merely informing HCPs about the design differences in the products—its advertising conveys the message that Xyzal is superior to Zyrtec so that HCPs will recommend Xyzal Allergy 24HR instead of competing OTC oral antihistamines (including Zyrtec) to their patients,” according to the decision. “While advertisers are free to highlight meaningful differences between their product and a competing product, the highlighted differences should be truthful and provide meaningful benefits.”

By promoting the pharmacological differences between Xyzal and competing products as a benefit, even though the differences had not been shown to have a clinically meaningful benefit, the disclaimer couldn’t save the ad because it contradicted the claims it qualified.

The NAD recommended that the challenged claims be discontinued. Although Chattem noted it “disagrees with NAD’s position that health care practitioners or consumers would be misled by Chattem’s advertising,” it agreed to comply with the recommendations.

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

Why it matters: The decision provides a reminder to advertisers that while they can highlight meaningful differences between their product and a competitor’s, the highlighted differences must be truthful and provide meaningful benefits. Here, Chattem promoted the differences in its allergy medication, but those differences provided no clinically meaningful benefit, the NAD said.



pursuant to New York DR 2-101(f)

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