NARB Shines a Light on ‘Double Offer’ Flashlight Claims

Advertising Law

In order to clearly and conspicuously disclose the discount or price offered for a second item and any associated charges or fees, the National Advertising Review Board (NARB) recommended that Telebrands Corp. modify its “double offer” and “buy one get one” claims.

Telebrands ran direct advertising television commercials with a “double offer” for two Atomic Beam flashlights. A spokesperson stated, “And if you order now, you can double it and get a second Atomic Beam, just pay a separate fee.” The image of two flashlights with the words “DOUBLE OFFER” displayed on the screen for several seconds, with “pay separate fee” briefly appearing in small type under the words. Toward the end of the commercials, the visual showed two flashlights accompanied by a moving circle displaying “$19.99,” and in a smaller font “plus separate fee.”

On the advertiser’s website, Telebrands touted “Get Atomic Beam for just $19.99 free shipping special offer buy one get one,” originally presented with the phrase “just pay a separate fee” and later changed to “just pay a separate $9.99 fee.”

Competitor Energizer Brands challenged the claims. The National Advertising Division advised Telebrands to modify its advertising to clearly disclose as part of its double offer the discount or price offered for the second flashlight (such as “Buy one, get second one for $9.99” or “Buy one, get one 50 percent off”).

Telebrands appealed to the NARB, but the panel sided with the NAD.

“The panel agrees with [the] NAD that the challenged television commercials reasonably convey a message that if the consumer purchases two Atomic Beam flashlights, the second one would be, at the very least, priced with a significant discount,” according to the decision. “In some iterations of the challenged advertising, consumers might even reasonably conclude that the second flashlight is free with payment of a small fee.”

The “separate fee” language in the ad was not sufficient to show that consumers would understand the second flashlight was not free, the NARB added, because it appeared “in a significantly less prominent manner than the rest of the offer terms and is not likely to be noticed and/or understood by consumers.”

Reasonable consumers understand the word “fee” to represent a relatively small amount connected to shipping, handling or some similar service, the panel explained, not as the cost of the second flashlight as Telebrands used the term. Further, the commercial promised free shipping and handling in close proximity to the “separate fee” disclosure, the NARB noted.

“In this context, consumers could reasonably be confused and believe that the ‘separate fee’ had been for shipping and handling but it was now waived,” the panel wrote. “In the alternative, consumers might believe that the ‘separate fee’ was going to be for some other unexplained service. Therefore, the panel agrees with the NAD that the word ‘fee’ in the challenged advertising adds to the potential for consumer confusion as to the terms of Telebrands’ offer.”

The NARB did not suggest that Telebrands couldn’t use the word “fee” in its advertising, but recommended that its use be accompanied by clear and conspicuous disclosures as to what charge or service the fee represents as well as the fee amount.

As for the website advertising, it could not cure any deficiencies in the television commercials and the $9.99 fee was not disclosed until checkout, the NARB said, leaving consumers to reasonably believe until the checkout page that the second flashlight was free or at a substantial discount.

Therefore, the panel recommended that Telebrands modify the various “double offer” and “buy one get one” claims to disclose clearly and conspicuously the discount or price offered for the second flashlight.

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

Why it matters: The NARB panel agreed with the NAD that the advertiser’s disclosures were not sufficiently prominent and that it used the term “fee” in a vague and unclear manner, and recommended that the commercials and website be modified to clearly and conspicuously disclose the discount or price offered for the second flashlight.



pursuant to New York DR 2-101(f)

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