It tastes better. More authentic smell. Better cover up odors. A more comfortable fit. These advertising claims based on human senses are effective advertising tools, but they pose a difficult challenge for advertisers to prove and verify. In order to determine whether and how to verify a given claim, advertisers must understand the difference between sensory claims, more general performance claims, and exaggerations. In essence, advertisers who put forward sensory claims are based on other unique human sensory perceptions, and convert subjective preferences into advertising claims that can be objectively proven. How is this done? Well, just like the old joke about how porcupines breed, "be very careful."

The sensory perception statement is problematic in the recent NAD decision. Starting from December 2020, NAD has analyzed Alcon Vision LLC’s statement on its PRECISION1 daily contact lenses. [i] The fit and comfort of contact lenses are obviously subjective perceptions, but after asking enough people the same questions, in a controlled survey, you can get a reliable and proven comfort statement. In this case, Alcon put forward a variety of claims, including a preference claim (the lens is "very like") and a comfort claim (more comfort at the end of the day), both of which are changes in sensory claims. body. Alcon provided evidence in the form of "a 92-subject, double-blind, randomized, bilateral crossover clinical study" that compared PRECISION1 with the challenger's product (Johnson & Johnson's 1-day ACUVUE MOIST). NAD carefully selected this study and finally concluded that it was performed well and reliable, but only noting that it was (i) blinded, (ii) randomized, and (iii) included "reasonable inclusion/exclusion criteria" ", (iv) has a reasonable "washout period and fitting process", (v) does not have any "significant residual deviations or sequence effects", and (vi) has well-designed survey questions.

After conducting a detailed reliability analysis, NAD then considered whether Alcon's advertisements really "fitted" its evidence. “When NAD reviews the evidence provided to substantiate a claim, it must not only determine whether the evidence is reliable, but it must also determine whether the evidence and the information communicated are “a good fit.” [ii] NAD found that Alcon’s evidence was consistent Some, but not all, its advertising. I found that the statement "PRECISION1 is better than 1 day ACUVUE MOIST in terms of end-of-day vision [and] comfort" is very appropriate because the advertisement shows the actual research results behind this statement. However, NAD pointed out that the quantitative claim that Alcon’s lens is 5 times that of Johnson’s lens has not been confirmed. NAD came to this conclusion because Alcon's research showed that "only" 4.69 times more subjects strongly liked Alcon's products. Therefore, NAD recommends that the statement be modified to exactly match the underlying evidence—that is, to reduce the statement from "5" statements to "4.69" statements.

Any claim related to the human senses—whether it is the comfort of contact lenses, the superior taste of cereals, or the more authentic smell of candles—cannot be objectively measured in traditional ways. However, they can be measured by asking enough samples of people to report their subjective experience of the product.

Compare these types of sensory claims with the performance claims of flashlights that are "20 times brighter than the main competitor." Although humans can perceive the brightness of light, a photometer can objectively measure light output without asking people about their perception of light brightness. On the other hand, comparative taste preference cannot be measured by some kind of "taste meter" in this way. Only those claims that cannot be measured without asking people's subjective experience are sensory perception claims.

Given its relatively subjective nature, sensory perception claims also tend to be closer to the expansion line than other claims. "The best coffee in the world" is a classic example of puffing-an exaggerated statement that is not intended to convey any clear, specific, objectively measured performance-even though it contains an apparent "taste" statement. In fact, in a recent case, NAD concluded that the phrase "redesign for a superior fragrance experience" is very exaggerated because it lacks any "provable and quantifiable attributes." [iii] NAD explained that “the wording of the statement does not convey the message that the product has been redesigned to substantially improve performance, but that it has increased subjective appeal. This is still a typical representative of bragging.” [iv]

Given the relative lack of expertise in federal courts in advertising claims, federal courts may be more likely to find edema than NAD. In fact, the Federal Court has not issued any substantive rulings on sensory claims in the past few years, which may indicate that litigants are not even willing to submit these claims to court. In a recent decision on the use of corn syrup in beer, sensory requirements were not a direct issue, and the Seventh Circuit unfoundedly held that "[w] [use corn syrup] is good, because it can improve flavor ( Miller and Coors's take) or bad (Bud's) is determined by consumers, not by the judiciary."[v]

Going back a bit further, Church & Dwight Co., Inc. v. Clorox Co., 840 F.Supp.2d 717 (2012) from the Southern District of New York is a classic Lanham Act judgment on sensory perception. In this case, the plaintiff sought and obtained a preliminary injunction prohibiting the defendant from playing commercial advertisements, claiming that its cat litter made of carbon is better than the plaintiff’s cat litter products in covering up the smell of cat feces. Made of baking soda. [vi] This claim was communicated through mixed visuals, one of which showed that a green gas-representing an odor-persisted on the plaintiff's product and quickly dissipated on the defendant's product. The voice-over reinforces this claim.

The defendant supported its advertisement through an internal "can test", which required four groups of 11 trained people to smell six prepared cat feces samples, which were either untreated with baking soda or treated with carbon. Based on junk products. Then ask the team members to rate the odor of each sample on a scale of 0-15. The plaintiff made several criticisms of this jar test. First, the plaintiff argued that the jar test did not match the actual use of the relevant cat litter product-and pointed out that cat excrement is usually not immediately sealed in the jar for 24 hours before its smell can pass through the home. Another criticism of the can test results is that the number of panelists who answered that certain samples (cat feces treated with carbon) emit zero odor is very unreliable. The judge was skeptical about the zero odor of cat excrement sealed in the jar for 24 hours-despite the addition of carbon-based cat litter-and rejected the result of the jar test. After reviewing the records, the judge based on the results of another study showed that the interviewees usually recognized some odors, even from samples with no excrement at all. Therefore, the defendant’s empirical test was unsuccessful, and the plaintiff’s motion was approved.

Like the courts of Church & Dwight Co., Inc., NAD (as it did in PRECISION1) requires strong evidence to critically review sensory claims and ensure that advertising claims match the test. The decisions of other NADs also made this clear. In Malt-O-Meal Company (Malt-O-Meal Cereals) report No. 4556, NAD/CARU case report (September 2006), NAD analyzed the advertiser’s “Betcha Can’ "t Taste the Difference" breakfast cereal product. NAD found that the statement is "same good" as a statement of affordable taste compared to the national brand named on the package.[vii]

Advertisers’ national taste tests attempt to prove that consumers cannot distinguish between the two grains. However, NAD found several fatal flaws. First, participants were allowed to add sugar to the test product, although doing so would obviously change their taste, and the advertiser failed to record how much sugar was added to each sample. Second, participants were only allowed to use 2% milk, although many consumers used other types of milk in their cereal. Third, the survey at the end of the study included only three closed-ended, agree or disagree questions, and did not include the “don’t know” option, nor did it include open-ended questions. These shortcomings make the research conclusions practically meaningless and deprive any evidence of claims. [viii]

In another recent decision, NAD considered the statement that "Ragu traditional users prefer Prego's traditional 2 to 1 taste...ask these experts". The ad then showed images depicting two toddlers eating pasta. One of them ate all their pasta, while the other rejected a fork of pasta provided by their mother. [ix] In order to support the taste preference statement, advertisers conducted large-scale, multi-site, blind taste tests, in which the substances were largely unchallenged. The challenger found a noteworthy problem: The description of two toddlers conveyed the wrong statement that Campbell sauce is the first choice of 2 to 1 among young children, and Campbell’s taste test does not include these young children. child. NAD eventually rejected this argument and concluded that the advertisement was obviously half-joking, and irrational consumers would believe that Campbell Soup made this special request.

NAD’s recent ads for sensory perception involve statements such as "excellent fragrance experience" and "lavender more authentic than Air Wick." [x] When analyzing these statements, NAD found that rational consumers can understand what they mean:

Although advertisers used "double-blind, multi-market consumer research conducted by third-party testing labs" to support their claims, NAD concluded that the research results did not meet the claims. Specifically, NAD found that the "authentic lavender" smell in the test is completely subjective. As part of the test, the purpose is not to determine what real lavender smells like, or whether the product really smells like real lavender. Instead, the test is only a test of odor preference. NAD pointed out that “every'more authentic lavender' statement is presented with an image of the actual lavender plant, which strengthens consumers’ perception that these statements refer to the degree of similarity between the product’s respective scent and the objective reference point—a Real, real lavender plants." [xi] As always, even the best research is useless if it does not "fit" the advertisement in question.

Whether it's more comfortable, more delicious, or smells bad, sensory claims are effective advertising tools. Assert that your contact lens is the first choice of 5 to 1, the taste of your spaghetti sauce is the first choice of consumers 2 to 1, or that your cat litter is better than your competitors to mask the smell, these are all potential Strong revenue drivers. Therefore, NAD takes such claims very seriously, and advertisers are well served by treating sensory claims with the same weight as all other claims-by corroborating them with hard data.

[i] Alcon Vision, LLC (PRECISION1 Daily Contact Lenses), report #6913, NAD/CARU case report (December 2020)

[iii] SC Johnson & Son, Inc. (Glade Products), report #6415, NAD/CARU case report (September 2020)

[v] Molson Coors Beverage Co. USA LLC v. Anheuser-Busch Companies, LLC, 957 F.3d 837, 839 (7th Cir. 2020)

[ix] Campbell Soup Company (Prego Traditional Pasta Sauce), report #6085, NAD/CARU case report (May 2017)

[x] SC Johnson & Son, Inc. (Glade Products), report #6415, NAD/CARU case report (September 2020)

Disclaimer: Due to the general nature of this update, the information provided here may not be applicable in all situations, and action should not be taken without specific legal advice based on specific circumstances.

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