NAD Issues Decision Regarding Zarbee’s Cough Products

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

Cough relief claims for Zarbee’s, Inc., cough products were challenged by a competitor, Maty’s Healthy Products, LLC, with the National Advertising Division (NAD) of BBB National Programs. Both companies sell honey-based cough relief products, including lozenges and cough syrups.

The claims at issue appeared on product packaging, website advertising, third-party retailer websites and social media. Claims regarding honey-based cough relief products were also the subject of a July 2020 NAD decision based on a challenge by Zarbee’s to advertising for products sold by Maty’s.

Honey is the ingredient in Zarbee’s products that provides the cough-soothing benefit. The issue before the NAD was whether Zarbee’s claims, in the context of the challenged advertising, accurately conveyed that the cough relief efficacy of the products is properly attributed to their honey content and not to the whole product formulation. The overall efficacy of the products was not at issue.

The NAD reviewed the imagery on the packaging, as well as the layout and prominence of the text on the label, to determine the messages conveyed to consumers. Each label presented the challenged claims in a different context that impacted the messages consumers would take away. Some product labels integrate the term “honey” into the product name in a manner that ties honey to the cough-soothing benefit. Some product labels highlight only honey as an ingredient, while others refer to multiple ingredients without expressly specifying whether it is the combination of ingredients that provide the claimed cough-soothing benefits or the honey.

The NAD determined that the “Honey Cough Soothers” product labels sufficiently identify for consumers that honey is the source of the cough-soothing benefit, and that the claim “Soothes Coughs Associated With Hoarseness, Dry Throat, and Irritants” did not mislead consumers as to why the product is efficacious.

Likewise, the NAD found that a number of other claims do not mislead consumers as to why the product is efficacious.

However, the NAD determined that other claims could reasonably convey the message that the cough-soothing effect was attributable to the multi-ingredient product as a whole or did not make clear that the claimed benefit comes from the honey. NAD recommended that those claims be modified to make clear that the cough-soothing benefit is attributable to the product’s honey.

The NAD stated that when a product’s claimed efficacy is based on the efficacy of one ingredient and not other ingredients in a product, consumers must be able to understand that from the claim and context in which the claim is made.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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