NAD Weighs In on ‘Best’ Claims

Advertising Law

Be careful about making claims that a product is the “best,” the National Advertising Division (NAD) cautioned in a new decision, recommending that Mahindra USA discontinue claims that it offered the industry’s “best” warranty and “best” in loader lift capacity, and that its tractors provide the “BEST VALUE.”

Deere & Company, Inc., challenged many claims found in print, radio, television and Internet advertising for Mahindra tractors, utility vehicles, implements and engine oils. Claims included “Best” and “industry’s leading” limited powertrain warranties, as well as “World’s #1 Selling Tractor,” “#1 Selling Tractor in the World,” “Toughest Tractors on Earth” and related testimonials that negatively compared John Deere tractors.

The advertiser alternatively argued that its “best” claims were puffery, for which no substantiation was required, or that it provided substantiation for its claims. With regard to the warranty and lift capacity claims, the NAD disagreed.

“NAD determined that the advertiser’s superior warranty claims were not puffery,” the self-regulatory body wrote. “While the claims appear in contexts without any references to any specific attribute of the Mahindra warranty when it is characterized as the ‘best’ or ‘industry-leading,’ the quality of a warranty is capable of measurement and the advertisements lack significant hyperbolic or fanciful elements that are common markers of puffery.”

Similarly, Mahindra’s lift capacity claims should be discontinued, the NAD said. The advertiser claimed its tractors are “#1 with best-in-class loader lift capacity,” submitting a chart comparing listed loader lift capacities for four tractor brands and demonstration videos comparing the lift capacity of the various models.

But this evidence did not demonstrate “that its listed comparisons substantiated its unqualified superiority claim, which conveys a message of broad superiority over all tractors and all competitors,” the NAD wrote. “The advertiser had not demonstrated that the competitors’ models selected were apt comparisons to the corresponding Mahindra model.”

Overall performance claims—such as “The Best vs. The Rest”—should also come to an end, as Mahindra “had not demonstrated that it had a reasonable basis to claim overall performance superiority.”

However, some of the challenged claims survived. Mahindra’s taglines that it had the “Toughest Tractors on Earth” and “Toughest Utility Vehicles on Earth” are puffery, the NAD said, finding the word “tough” to be “a broadly defined adjective that many consumers would apply to all tractors. There is no quantifiable measure of simple ‘toughness’ when applied to a tractor. In all the contexts in which they appear, the taglines are not clearly tied to objectively measurable attributes of Mahindra tractors. A reasonable consumer will not take away a message that Mahindra tractors have a greater lift capacity or are more durable than all others because they are advertised as ‘tough’ or ‘toughest.’”

The NAD did caution the advertiser against using the term “toughest” in contexts where consumers may understand it to refer to one or more specific and measurable attributes and recommended that a related testimonial be discontinued. The testimonial (“We have found Mahindra to be a very strong tractor that doesn’t require a lot of repairs. We bought a John Deere mower four years ago and it’s falling apart, but Mahindra has stayed a workhorse.”) reasonably conveyed the message “that Mahindra tractors generally require fewer repairs than Deere tractors, a message not supported by any evidence.”

The self-regulatory body also allowed Mahindra’s best-selling claims, which were based on its own global sales data and an estimation of John Deere’s sales based on published data regarding the size of various tractor markets around the world and John Deere’s market share in those locations.

“NAD determined that the advertiser had a reasonable basis to claim that certain types of farm tractors manufactured by the Mahindra family of companies are the best-selling tractors in the world,” according to the decision. “A claim that a product is ‘#1 in the world’ does not necessarily convey to American consumers that ‘#1’ means ‘#1’ in the United States. In Mahindra’s challenged advertising, there is no direct reference to Mahindra’s U.S. sales performance and nothing expressed or implied about its U.S. sales performance relative to other tractor manufacturers.”

The NAD did advise the advertiser to modify its sales claims to “clearly and conspicuously” disclose the basis for its claims so that they are adequately qualified.

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

Why it matters: While the NAD found that one of the advertiser’s claims constituted puffery, the self-regulatory body recommended that the bulk of the “best” claims made by Mahindra should be discontinued, as they were objective claims requiring substantiation that the advertiser did not provide. In its advertiser’s statement, Mahindra said it plans to appeal the NAD’s decision to the National Advertising Review Board.



pursuant to New York DR 2-101(f)

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