Better taste. More authentic smell. Covers up odor better. More comfortable fit. These kinds of human-sense-based advertising claims are potent advertising tools, but pose difficult challenges for advertisers to prove and substantiate. In order to determine whether, and how, to substantiate a given claim, advertisers must understand the distinction between sense perception claims, more run-of-the-mill performance claims, and puffery. In essence, an advertiser that makes a sense perception claim is taking subjective preferences, based on otherwise unique human sense perceptions, and turning them into objectively provable advertising claims. How is this done? Well, as the old joke goes about how porcupines procreate, “very carefully.”
Sensory perception claims were at issue in a recent NAD decision from December 2020, where NAD analyzed claims by Alcon Vision LLC about their PRECISION1 daily contact lenses.[i] The fit and comfort of contact lenses are clearly subjective perceptions, but ask enough people the same question, in a controlled survey, and you could get a reliable, substantiated comfort claim. In the case, Alcon made a variety of claims, including preference claims (the lenses were “strongly preferred”) and comfort claims (superior end-of-day comfort), both of which are varieties of sense perception claims. Alcon provided substantiation in the form of “a 92-subject, double-blinded, randomized, bilateral crossover clinical study” comparing PRECISION1 to the challenger’s product (Johnson & Johnson’s 1-Day ACUVUE MOIST). NAD meticulously picked over the study, ultimately concluding that it was well-conducted and reliable, but only after noting that it was (i) blinded, (ii) randomized, (iii) included “reasonable inclusion/exclusion criteria,” (iv) had a reasonable “washout period and fitting process,” (v) lacked any “significant carryover bias or sequence effect,” and (vi) had well-constructed survey questions.
Following this detailed reliability analysis, NAD then considered whether Alcon’s advertising actually “fit” its substantiation. “When NAD reviews evidence presented to substantiate a claim, it must determine not only if the evidence is reliable but also whether there is a ‘good fit’ between the evidence and the messages conveyed.”[ii] NAD found that Alcon’s substantiation fit some, but not all, of its advertising. The claim “PRECISION1 is superior to 1-DAY ACUVUE MOIST on end of day vision [and] comfort” was found to be a good fit because the ads showed the actual study results underlying this claim. However, NAD noted that the quantified claim that 5-times as many users “strongly preferred” Alcon’s lens to Johnson & Johnson’s was not substantiated. NAD reached this conclusion because Alcon’s study showed that “only” 4.69 times as many subjects strongly preferred Alcon’s product. Thus, NAD recommended that the claim be modified to precisely match the underlying substantiation – i.e., that the claim be reduced from a “5-times” claim to a “4.69-times” claim.
Any claim that concerns human senses – whether the comfort of a contact lens, the superior taste of a cereal, or the more authentic smell of candle – cannot be objectively measured in a traditional manner. They can, however, be measured by asking a large enough sample of people to report their subjective experiences with the products.
Contrast these types of sensory claims with the performance claim that a flashlight is “20x brighter than the leading competitor.” Even though humans are able to perceive a light’s brightness, light-meters objectively measure light output without the need to question people about their perception of the light’s brightness. Comparing flavor preferences, on the other hand, cannot be measured with some sort of “taste-meter” in this way. Only those claims that cannot be measured without asking people about their subjective experience are sense perception claims.
Sense perception claims also tend to toe the line of puffery more closely than other claims, given their relatively subjective nature. “Best tasting coffee in the world” is a classic example of puffery – a hyperbolic statement not intended to convey any defined, specific, objectively measured performance – notwithstanding the inclusion of an ostensible “taste” claim. Indeed, in one recent case, NAD concluded that the phrase “Redesigned for a superior fragrance experience” was puffery because it lacks any “provable, quantifiable attribute.”[iii] NAD explained that “the phrasing of the claim conveys the message not that the product has been redesigned to provide a material improvement to performance, but to increase subjective appeal, which remains the type of boastful statement that typifies puffery.”[iv]
Federal courts may be more likely to find puffery than NAD, given their comparative lack of expertise with advertising claims. In fact, the federal courts have not issued any substantive decisions concerning sense perception claims in the last couple of years, which may indicate a reticence on the part of litigants to even bring these claims before the courts. In one recent decision concerning the use of corn syrup in beer, where sense perception claims were not directly at issue, the Seventh Circuit gratuitously opined that “[w]hether [the use of corn syrup] is good because it improves flavor (Miller and Coors's take) or bad (Bud's) is for consumers rather than the judiciary to decide.”[v]
Going back a bit further in time, Church & Dwight Co., Inc. v. Clorox Co., 840 F.Supp.2d 717 (2012), from the Southern District of New York, is a classic sense perception Lanham Act decision. In this case, the plaintiff sought – and obtained – a preliminary injunction barring the defendant from airing a commercial claiming that its cat litter, made with carbon, was superior in covering up the smell of cat waste as compared to the plaintiff’s cat litter product, made with baking soda.[vi] This claim was conveyed through a mix of visuals, including one showing a greenish gas – meant to represent odor – persisting over plaintiff’s product and rapidly dissipating over defendant’s product, and voice-over audio reinforcing this claim.
The defendant supported its ad with an in-house “Jar Test,” in which four panels of 11 trained individuals were asked to smell a half-dozen prepared samples of cat excrement, which were either untreated treated with baking soda or treated with carbon-based litter products. The panelists were then asked to rate the odor of each sample on a scale from 0 to 15. Plaintiff asserted several critiques of this Jar Test. First, the plaintiff argued that the Jar Test did not match real-world use of the cat litter products in question – noting that cat excrement is typically not immediately sealed in a jar for 24 hours before its odor is allowed to make its way through a household. Another critique of the Jar Test results was that the number of panelists responding that certain samples (cat excrement treated with carbon) emitted zero malodor was highly implausible. The judge, skeptical of an outcome where zero stink was found to be emitted by cat excrement sealed in a jar for 24 hours – notwithstanding the addition of carbon-based cat litter – rejected the Jar Test results. Reviewing the record, the judge relied on the results of another study indicating that respondents generally identify some odor, even from samples with no excrement at all. Thus, defendant’s substantiation testing did not succeed, and plaintiff’s motion was granted.
Like the court in Church & Dwight Co., Inc., NAD (as it did in the PRECISION1 case) requires robust substantiation, examines sense perception claims critically, and ensures that the advertising claim closes matches the testing. Other NAD decisions similarly make this point clear. In Malt-O-Meal Company (Malt-O-Meal Cereals), Report #4556, NAD/CARU Case Reports (September 2006), NAD analyzed the claim “Betcha Can’t Taste the Difference” for the advertiser’s “off-brand” breakfast cereal products. NAD found that the claim was a “just as good” parity taste claim versus the national brands named on the packaging.[vii]
The advertiser’s national taste test attempted to prove that consumers could not distinguish between the two cereals. NAD, however, found several fatal flaws. First, participants were allowed to add sugar to the tested products, despite the fact that doing so obviously alters their taste, and the advertiser failed to document how much sugar was added to each sample. Second, participants were only allowed to use 2% milk, even though many consumers use other kinds of milk with their cereal. Third, the survey at the end of the study only included three closed-ended, agree-or-disagree questions, included no “don’t know” option, and included no open-ended questions. These flaws rendered the study conclusions effectively meaningless, and deprived the claim of any substantiation.[viii]
In another more recent decision, NAD considered the claim that “Ragu Traditional users prefer the taste of Prego Traditional 2-to-1 … Just ask these experts.” The commercial then showed imagery depicting two toddlers eating spaghetti, one of which eats all of their pasta, while the other waves off their mother’s offer of a forkful of spaghetti.[ix] To support the taste preference claim, the advertiser conducted a large scale, multi-site, blinded taste test, the substance of which was largely unchallenged. The challenger identified one issue of note: that the depiction of two toddlers conveyed the false claim that Campbell’s sauce was preferred 2-to-1 among toddlers, when Campbell’s taste test did not include such young children. NAD ultimately rejected this argument, concluding that the advertisement was clearly tongue-in-cheek, and that no reasonable consumer would believe Campbell’s was making that particular claim.
NAD’s most recent foray into the realm of sense perception ads concerned claims like “superior fragrance experience” and “more authentic lavender than Air Wick.”[x] In analyzing these claims, NAD found that reasonable consumers could understand them to mean that:
- the featured Glade product contains a greater quantity of authentic lavender components than Air Wick,
- it has a scent that is more similar to authentic lavender than Air Wick, or
- it has a stronger or more intense authentic lavender scent than Air Wick.
Even though the advertiser supported its claims with a “double-blind, multi-market consumer study conducted by a third-party testing laboratory,” among other evidence, NAD concluded that the study results did not fit the claim. Specifically, NAD found that ‘authentic lavender’ smell in the test was entirely subjective, and was not intended, as part of the test, to determine what authentic lavender smelled like or whether the products actually smelled like authentic lavender. Rather, the test was merely a smell preference test. NAD pointed out that “each of the ‘more authentic lavender’ claims is presented alongside images of actual lavender plants, reinforcing the consumer takeaway that the claims are referencing the level of similarity between the products’ respective scents and an objective reference point – a real, authentic lavender plant.”[xi] As always, even the best studies are useless if they do not ‘fit’ the advertisement in question.
Whether it is more comfortable, tastes great, or smells stinky, sense perception claims are potent advertising tools. Asserting that your contact lenses are preferred 5-to-1, that the taste of your pasta sauce is preferred by consumers 2-to-1, or that your kitty litter covers up odor better than your competitor’s, are potentially powerful revenue drivers. Such claims are, thus, taken quite seriously by NAD, and advertisers are well-served by treating sense perception claims with the same weight as all other claims – by substantiating them with hard data.
[i] Alcon Vision, LLC (PRECISION1 Daily Contact Lenses), Report #6913, NAD/CARU Case Reports (December 2020)
[iii] S.C. Johnson & Son, Inc. (Glade Products), Report #6415, NAD/CARU Case Reports (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 Reports (May 2017)
[x] S.C. Johnson & Son, Inc. (Glade Products), Report #6415, NAD/CARU Case Reports (September 2020)