Virtual Trademarks -
The Secret World of Keyword Ads by Jonathan Moskin!

Key Developments in NAD and CARU False Advertising Cases -
by Jeffrey S. Edelstein!

Made in the U.S.A., Except in California -
by Randal Shaheen, Amy Ralph Mudge & George Langendorf!

 

Latest Lanham Act Case to Bring Down a National Ad Campaign -
by Randall K. Miller!

 

 

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BULLETIN #646

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NAD INVESTIGATIONS - "GREEN" ADVERTISING": RECENT HIGHLIGHTS

 

FTC OK's FILING JOINT AMICUS BRIEF IN MATTER OF "ALTRIA v. GOOD, ET AL."

 

"GREEN" ADVERTISING CLAIMS

 

America is going "green" and this is increasingly reflected in the way in which products are advertised. Our NAD article looks at three recent NAD rulings that involved, to some extent, "green" advertising claims.

 

Church & Dwight Co., Inc. NAD recommended that this advertiser should discontinue or modify certain advertising claims for its Arm & Hammer Essentials brand laundry detergent. Procter & Gamble Corp., a competing maker of laundry products, challenged the advertising.

 

NAD examined such "natural" and environmental claims as:

 

• "100% Naturally Derived Surfactants"
• "100% Plant Based Soaps"
• "No Petroleum-Based Cleaners"
• "Naturally Cleaner & Fresher!*" (*vs. a leading value detergent brand)
• "Harnessing the Power of Nature . . . to deliver cleaner, fresher laundry while being better for you and your family, more sensible for the environment."
• "The only detergent that combines boosted ARM & HAMMER* baking soda with renewable plant-based soaps to deliver powerful cleaning and fresher clothes."
• • "More sensible for you, your family and the environment."

 

NAD concluded, among other things, that images in the print ad and the product packaging–along with the text–conveyed the message that the Essentials product is "natural" due to its surfactants which allow for more effective washing.

 

NAD's recommendation: The advertiser should discontinue these claims:

 

"100% Naturally Derived Surfactants,"

 

"100% Plant Based Soaps" [and]

 

"No Petroleum-Based Cleaners."

 

Additionally, NAD recommended that the advertiser should remove the reference to "naturally" in the claim "Naturally Cleaner & Fresher!*"

 

But NAD found that the advertiser did provide a reasonable basis for its "Harnessing the Power of Nature" claim since the surfactants use (i.e., coconut alkyl ethoxylate and coconut ethoxy sulfate) are derived from plants and the surfactants in the final product are nearly 35% plant-based.

 

Also, NAD recommended that the advertiser should modify its advertising and product packaging to avoid conveying the unsupported message that the Essentials product confers a unique environmental benefit.

 

And NAD found that a carefully qualified claim that Essentials' concentrated product requires less packaging and so produces less waste would be supported.

 

In its advertiser's statement, the advertiser said it's pleased by "NAD's recognition that we can claim appropriately that Essentials laundry detergent `Harnesses the Power of Nature' by using plant-derived surfactants. Although we respectfully disagree with certain aspects of the NAD's Decision, in the spirit of self-regulation, we accept it and will modify our advertising and labeling accordingly."

 

(Church & Dwight Co., Inc., NAD Release, June 6, 2008.)

 

North American Green. NAD recommended that North American Green modify or discontinue a wide range of advertising claims for its HydraMatrixCX2 hydraulically-applied mulch and erosion control product. But NAD found that the advertiser could reasonably support certain claims. (This summary focuses largely on the green aspects of this NAD ruling.)

 

Profile Products, LLC, a manufacturer of competing mulch products, challenged advertising claims for HydraMatrixCX2. NAD looked at print, packaging and website advertising. At issue were such claims as:

 

• "Developed in cooperation with Cotton Incorporated and the USDA. First in the HydraMatrixCX2 series of 100% natural-cotton-fiber, high performance, hydraulic erosion control products from North American Green."
• "Its all-natural cotton fibers form a protective web that holds soil in place on the steepest slopes, even against heavy wind and rain. And the all-natural cotton of HydraCX2 holds just the right amount of moisture to quickly establish germination and promote vegetation growth for permanent erosion control."
• "Made from Cotton."
• "COTTON IS TOTALLY GREEN."

 

After reviewing the evidence, NAD found that the references to biodegradability and organic matter in the claim "The HydraCX2 is 100% biodegradable, environmentally friendly, and consists of 90.9% organic matter" were accurate.

 

However, NAD recommended that the advertiser should discontinue the broad unqualified claims that HydraCX2 is "environmentally friendly" and "cotton is totally green."

 

In its advertiser's statement, the advertiser said:

 

"With respect to the cotton content of HydraCX2, we believe it is important and appropriate to highlight this distinguishing product feature. In future advertising, however, we will clarify the nature and proportion of the cotton plant material in HydraCX2. We likewise will take NAD's other recommendations into consideration in developing future advertising and packaging for the HydraCX2 product."

 

(North American Green, NAD Release, June 11, 2008.)

 

Brammo Motorsports, LLC. NAD recommended that this advertiser should discontinue unsupported claims that the company's Enertia-brand motorcycle is the is "the world's first production zero-emission battery powered plug-in electric motorcycle" and "the World's First Production Electric Motorcycle." Vectrix Corporation, maker of the Vectrix electric motorcycle, challenged these claims. The claims at issue appeared in a press release on the advertiser's website, at MSN Video and in a Podcast from Green Talk Radio.

 

Specifically, the claims included:

 

• "Brammo Launches the Enertia, World's First Production Electric Motorcycle."
• "Brammo today announced the Enertia, the world's first production zero-emission battery powered plug-in electric motorcycle."
• "We're introducing a new bike - the Enertia - which is an electric motorcycle, the first electric plug-in motorcycle to go to market."
• Enertia is the "first production all electric motorcycle".

 

One of the claims had appeared in several different forms: magazine articles, interviews and in the advertiser's press release. NAD pointed out that while news articles and interviews are protected First Amendment speech, they must be given full attribution when used by advertisers to promote a product. Here, articles and interviews, and the advertiser's press release, were posted to the advertiser's website. NAD noted that the advertiser's website is designed for consumer shopping and intended to encourage consumers to buy the advertiser's product. NAD concluded that it did have jurisdiction in this case since the advertising was national in scope and character.

 

NAD acknowledged that the rise of the "green" movement has caused an influx of new products and product innovations created by companies that wish to promote their green efforts. Green advertising claims, said NAD, are increasing in popularity and can be both useful and valuable to consumers when making purchase decisions.

 

Nevertheless, NAD said, it's well-established that an advertiser has to back up all reasonable interpretations of its advertising claims. NAD found that at the time the challenged advertising claims were made, the advertiser's product–a "step-over" model generally reflective of gas-powered motorcycles–was not yet available to the public. However, the challenger's "step-through" model–generally reflective of "scooters"– was available for sale.

 

In its advertiser's statement, the advertiser noted that it agreed to "modify its advertising taking into account NAD's recommendations."

 

(Brammo Motorsports, LLC, NAD Release, May 1, 2008.)

 

LAWYER's REFERENCE SERVICE

 

Church & Dwight Co., Inc., NAD Release, June 6, 2008.

 

North American Green, NAD Release, June 11, 2008.

 

Brammo Motorsports, LLC, NAD Release, May 1, 2008.

 

See also:

 

Advertising Compliance Service, "10 Ways to Avoid Making Suspect Environmental Claims," Tab #27, Green Advertising, Article #1.

 

Advertising Compliance Service, "FTC Reviews Environmental Marketing Guides," Tab #27, Green Advertising, Article #2.)

 

By citing the NAD Reports, the Service in no way endorses or criticizes the NAD actions or findings.

 

# # #

 

Volume XXVIII
Issue 14
July 21, 2008
Pages 29-32

 

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Advertising Compliance Service is a REFERENCE COMPENDIUM of JLCom Publishing Co., L.L.C.

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NOTICE: This publication is not intended to provide legal advice. Persons who need legal services should contact a duly licensed professional.

 

© Copyright 2008-2009 JLCom Publishing Co., L.L.C. All rights reserved.

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