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DRMA

Anything You Can Clean, I Can Clean Better

16 Apr, 2013 By: Gregory J. Sater


Rug Doctor Inc. and Bissell Homecare Inc. went head to head recently in a pair of dueling false advertising cases brought before and decided by the National Advertising Division (NAD) of the Better Business Bureau (BBB).

At the NAD, companies may bring challenges against the national ads of competitors. The NAD issues a ruling, which – when necessary – recommends that changes be made to the challenged ads. The NAD process is somewhat similar to a private arbitration conducted out of court.

In the first of the two dueling cases, Rug Doctor complained about a "side-by-side" comparative demonstration by Bissell of the two companies' competing carpet-cleaning machines.

Bissell's website, YouTube page, and TV commercial featured a video clip of Bissell's comparative demo. In the video clip, each company's carpet-cleaning machine is seen making one pass forward and then one pass backward, after which it appears as though the Rug Doctor machine has completely failed to clean the carpet while Bissell's machine has – you guessed it – cleaned the carpet beautifully.

After closely reviewing testing submitted by the parties, the NAD recommended that Bissell discontinue airing that video demo. In the NAD's opinion there was reliable testing showing that, when used as directed, the Rug Doctor product would visibly clean a carpet – there would not be zero visible improvement, as portrayed in the video.

Meanwhile, in Bissell's parallel NAD case versus Rug Doctor, Bissell challenged certain Rug Doctor ads that were airing on TV and online. The ads claimed that Rug Doctor's machine "outcleans the competition" "cleans 2x faster than Bissell," and generally "cleans better, cleans faster, and costs less."

The NAD examined Rug Doctor's testing to support those claims, which consisted of x-ray fluorescence testing that measures the degree of debris removal, and agreed that this methodology was sufficiently accepted in the relevant industry to be relied upon to substantiate such an advertising claim. The NAD also concluded that the testing done in this particular case supported Rug Doctor's "outcleans" claim.

Nevertheless, the NAD held that Rug Doctor would need to qualify its "outcleans" claim by clearly and conspicuously disclosing what that claim was based on: i.e., that it was based on a measurement of debris removal.

As for Rug Doctor's "cleans faster" claim, that claim did not fare as well because the NAD concluded that Rug Doctor's testing specifically as to the speed of its carpet-cleaning was not sufficiently scientific. Therefore, it recommended that the "cleans faster" claim be discontinued. Finally, the NAD also asked Rug Doctor to modify its "costs less" claim, for lack of sufficient substantiation for a generalized "costs less" claim.

These cases are instructive on several levels. First, they show that while comparative advertising claims can be made, they are the type of claim that very likely will draw a challenge from a competitor (even if the Federal Trade Commission isn't particularly interested in them). Second, if there is a challenge, the advertiser needs to have testing and not just any testing: it needs to have the specific type of testing that would be considered par for the course in the applicable industry. Third, even if that testing does show some level of superiority, the imagery that is shown in the advertising cannot overstate that superiority and a comparative claim should be qualified so as to disclose exactly what criteria was being compared.

Lastly, if you bring a legal challenge against a competitor, expect to get one in return!

Gregory J. Sater is a partner in Venable LLP‘s Advertising, Marketing and New Media Group. He can be reached via E-mail at gjsater@venable.com.


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