Doctors Need Substantiation, Too: NAD Emphasizes that Advertising Claims Directed to Sophisticated Audiences are Subject to the Same Accuracy and Truthfulness Standards as Lay Consumers
By: Meg Tierney and Katie Staba
Summary: The National Advertising Division (NAD) of the Better Business Bureau recently published a decision reminding advertisers that claims directed to sophisticated audiences are still subject to the same rules and guidelines as those claims directed to the general public and lay audiences. In Bausch Health US, LLC (INFUSE Contact Lenses) the NAD reviewed a number of claims in a Bausch & Lomb (B & L) brochure distributed to eye care professionals (ECPs) for single-use contact lenses.
Among the claims challenged by Alcon and reviewed by NAD were a number of claims related to the scientific properties and measurements of the lenses, incorporated into a bar graph that demonstrated the different measurements among B & L lenses and those of its competitors (specifically, comparable lenses produced by competitors Alcon and Johnson & Johnson). Under the chart, the brochure displayed various statements that the B & L lenses provide superior comfort, wearability, or eye health benefits. For example, a claim about B & L lenses having the “lowest modulus” (a measurement of the lens) was immediately accompanied by the statement “that ‘low modulus’ . . . provides a comfortable lens wearing experience.”
The NAD turned to a prior case involving B & L contact lenses where the NAD found that “lens property claims paired with a superiority claim . . . conveyed a comparative message requiring a showing that the demonstrated differences will be clinically significant (i.e., consumer relevant.)” In the present case, NAD found that the lens property claims were “clearly intertwined” with clinical benefits of such properties and thus required separate studies to support such claims—which B & L was unable to provide.
The NAD specifically noted that “while a sophisticated audience may understand nuanced and technical language, as well as industry-related data used in a claim . . ., all messages reasonably conveyed should be truthful and accurate.”
Key Takeaways: The key takeaway in this case is a simple one: that all claims by an advertiser, regardless of audience sophistication, should be supported by reliable evidence. The K&L Gates consumer protection and advertising group can help review your final advertising campaign for claim substantiation concerns and a wide variety of other advertising issues.
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The National Advertising Division (NAD) of the Better Business Bureau recently published a decision reminding advertisers that claims directed to sophisticated audiences are still subject to the same rules and guidelines as those claims directed to the general public and lay audiences. In Bausch Health US, LLC (INFUSE Contact Lenses), NAD reviewed a number of express and implied superiority claims of advertiser Bausch & Lomb (B+L) related to its INFUSE single-use contact lenses made in a brochure and video primarily distributed to eye care professionals (ECPs) and related consumer-facing website. Report #6951, NAD/CARU Case Reports (Nov. 2021). NAD provided a lengthy decision, including a robust discussion of the design, methodologies and flaws within B+L’s proffered 893 Study, described as a “large-scale prospective, randomized, single-masked, parallel group clinical study carried out by 36 investigators at 36 sites across the United States with 805 enrolled subjects.”
Among the challenged claims were a number of claims conveying the message that the physical properties of the lenses lead to superior clinical outcomes (Physical Property Claims). These claims were incorporated into a bar graph purportedly demonstrating the different measurements among B+L lenses and those of its competitors (specifically, comparable lenses produced by competitors Alcon and Johnson & Johnson). Directly under the chart, the brochure displayed various statements conveying that the B+L lenses provide superior comfort, wearability, or eye health benefits. For example, a claim about B+L lenses having the “lowest modulus” (a measurement of the lens) was immediately accompanied by the statement “that ‘low modulus’ . . . provides a comfortable lens wearing experience.” The challenger argued that coupling these lens property claims with claims about the clinical benefits (e.g. comfort) conveys a superiority claim requiring testing to support the message reasonably conveyed.
B+L contended that it was merely highlighting three lens properties, including modulus, where INFUSE “beats” the leading competing lenses and reminding that these physical properties can affect outcomes such as comfort. B+L further argued that a reasonable ECP viewing the Physical Property Claims would not leap to the conclusion that the property-specific superiority claims also conveyed superiority for overall comfort.
In rejecting this argument and recommending modification, NAD reflected on a prior decision involving B+L contact lenses where NAD found that “lens property claims paired with a superiority claim . . . conveyed a comparative message requiring a showing that the demonstrated differences will be clinically significant (i.e., consumer relevant).” Bausch & Lomb (ULTRA Contact Lenses with MoistureSeal Technology), Report #5944, NAD/CARU Case Reports (April 2016). In the present decision, the Physical Property Claims were “clearly intertwined” with clinical benefits of such properties and thus required separate studies to support such claims: B+L’s in vitro testing of the lenses’ physical properties was not enough to show that there are clinically-meaningful differences between INFUSE as the comparators in terms of impact of claimed benefits.
The sophistication of the ECP audience could not save these Physical Property Claims. NAD specifically noted that “while a sophisticated audience may understand nuanced and technical language, as well as industry-related data used in a claim . . . all messages reasonably conveyed should be truthful and accurate.” The key takeaway in this decision is a simple one: All claims by an advertiser, regardless of audience sophistication, should be supported by reliable evidence. In its responsive statement, B+L signaled that it intends to appeal NAD’s recommendations to modify or discontinue claims.