NARB Brushes Up on Toothbrush Claims

Advertising Law

Considering comparative advertising for the Sonicare DiamondClean toothbrush, a panel of the National Advertising Review Board (NARB) agreed with the National Advertising Division (NAD) that the advertiser should modify certain claims.

Competitor The Procter & Gamble Company (P&G) challenged claims made in a 30-second television commercial and on a Sonicare website by Philips Oral Healthcare. Among other claims, both the commercial and website promoted a top-of-the-line Sonicare toothbrush as having outperformed a top-of-the-line P&G Oral-B toothbrush in a six-week clinical study known as the Starke Study.

While the NAD accepted the Starke Study methodology as valid, the self-regulatory body determined that Philips failed to show that the study participants were representative of the general population because they needed to have “moderate gingivitis” to be enrolled in the study.

The NAD recommended that this requirement of the study be disclosed as part of the “main” advertising claim, along with the fact that the study utilized a specific mode of cleaning, models, and brush heads. Philips appealed the recommendation, as did P&G, which contested the validity of the Starke Study.

Beginning with the issue of the study’s validity, the NARB agreed with the NAD that it was well designed, randomized, examiner-blind and methodologically sound. The panel disagreed with P&G that findings in a different study showing that the Oral-B toothbrush performed on par with or better than the Sonicare toothbrush undercut the value of the Starke Study.

“[E]ven if the results reported for that study were to some extent inconsistent with the Starke Study data, that was not a sufficient reason to prevent Philips from relying on the Starke Study results as long as that study was, as this panel concludes, methodologically sound,” the panel wrote.

The NARB also agreed with the NAD on its recommendation that the advertiser disclose that only individuals with “moderate gingivitis” could participate in the study. Philips argued that this was an unnecessary disclosure since it was obvious from the commercial that the toothbrush was targeted to those concerned with oral health issues, and those with moderate gingivitis were representative of this audience.

“The panel does not agree, but rather concludes that the advertising in question was targeted at the general tooth-brushing population,” according to the decision. “Therefore, the moderate gingivitis study requirement should be disclosed as part of the main claim.”

Similarly, the NARB agreed with the NAD’s recommendation that a disclosure that the toothbrush was used in Deep Clean mode should be moved to the main claim. As this mode lasts three minutes in length, it was unnecessary for Philips to further disclose the length of the brushing in the Starke Study, the panel determined, as P&G had argued. The models and brush heads used in the study should also be disclosed in any main claim presentation of the results, the NARB added.

The panel further found that a chart comparing travel cases and location sensors between the two types of toothbrushes was misleading, recommending that it be discontinued. The Sonicare website touted the inclusion of a “deluxe charging travel case” while stating that the Oral-B brush did not have such a feature.

While the NAD concluded that the comparison was defensible—despite the fact that the Oral-B brush also came with a charging travel case—the NARB disagreed. Although Philips argued that the use of the term “deluxe” was puffery, “the panel does not consider it puffery when ‘deluxe’ is used in the context of a comparison to a competitor’s product,” the NARB stated. 

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

Why it matters: The NARB panel largely upheld the NAD’s recommendations that the methodology of the study relied upon by the advertiser was sound but concluded that several additional disclosures were necessary as part of the main claim reporting on the study results, such as the requirement that study participants have moderate gingivitis, as well as the mode, models and brush heads used in the study.



pursuant to New York DR 2-101(f)

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