Proposed package copy for a consumer product contains a claim that the product’s performance is the fastest in its class. When asked to provide support for the claim, the brand manager states that the class comprises all products with a five-year warranty. When then asked to identify which competitive products have a five-year warranty, the brand manager replies that no competitive product has a five-year warranty (competitive products had a one-year warranty).
The performance claim had to be removed before the packaging was created. Admittedly, the example is somewhat extreme given that the product was the only product with a five-year warranty, and the limitation – the five-year warranty – is one that a reasonable consumer would be unlikely to appreciate without further disclosure. As set forth in more detail below, the claim may have been useable if the class was properly defined in sufficiently prominent language on the package.
Section 5 of the Federal Trade Commission Act prohibits unfair or deceptive acts or practices. Numerous FTC and judicial decisions have provided guidance on what constitutes “deceptive acts or practices,” with respect to advertising claims. An advertising claim will be considered to be deceptive (1) if it is likely to mislead reasonable consumers under the circumstances and (2) if it could be a “material” factor in a consumer’s buying decision. If a claim conveys more than one meaning to a reasonable consumer, all such meanings must be true; otherwise, the advertiser is liable for any misleading interpretations. In the above cases, “class” has more than one reasonable interpretation. A consumer could reasonably believe that “class” refers to all competitive tools with the same functionality and general appearance.
One way to resolve the ambiguity is to add a definition of “class” to the package copy. Any such definition must be sufficiently prominent in size and location to be seen by a reasonable consumer in connection with seeing the word “class,” Also, the definition should be one that does not create a class that is so limited that it becomes almost meaningless. In the instant case, even assuming a class comprising only products with five year warranties is meaningful, given that there was only one product with a five-year warranty, adding a definition did not make sense from a marketing standpoint.
One other critical question was never reached in this instance: what support did the brand have for “fastest”? Although state law may allow an advertiser to support a claim on a post-publication basis, the FTC does not. Rather, the advertiser must have sufficient evidence in hand to support the claim before the claim is published. A lawyer who has experience with marketing and advertising law can help you to identify claims that must be supported and the evidence necessary to provide support.