Bayer Takes On NAD In All-Day Energy Claims Challenge Brought By Wyeth
This article was originally published in The Tan Sheet
Executive Summary
Bayer Healthcare will take a second opportunity to present evidence for the continued use of the All-Day Energy brand for its multivitamin product, according to a July 12 decision by the National Advertising Division of the Council of Better Business Bureaus
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Bayer Healthcare will take a second opportunity to present evidence for the continued use of the All-Day Energy brand for its multivitamin product, according to a July 12 decision by the National Advertising Division of the Council of Better Business Bureaus. Bayer says in future advertising it will take into account NAD's finding that "durational claims" associated with the multivitamin - multiple B vitamins combined with 90 mg of guaranal caffeine - are not supported in evidence it presented, according to NAD's report on the inquiry. However, the firm disagrees with NAD's conclusion the product name "is an express claim" not supported by sufficient evidence, the report says. The Morristown, N.J.-based Consumer Care division of Bayer Healthcare says the decision is "inappropriate" and "inconsistent" with the Council of Better Business Bureaus unit's rules. The firm argues that "absent extrinsic evidence that consumers have been confused or misled," NAD's rules do not require firms to change a product name "simply because a challenger speculates that it might be misleading," according to the report. Madison, N.J.-based Wyeth Consumer Healthcare challenged the duration of action in Bayer's advertising claims for All-Day Energy, arguing that consumers might misinterpret "all-day" to mean longer than eight hours. Wyeth also contended the product's name is a claim. NAD agreed with Wyeth's position, concluding "any durational claims" must be supported. Five members of the CBBB's National Advertising Review Board panel will hear Bayer's appeal of NAD's recommendation. The panel does not accept new evidence to support product claims, but firms can restate their arguments. The CBBB units' decisions are not binding on firms in the OTC and other industries, but Federal Trade Commission officials say they pay close attention when firms do not comply with decisions by industry self-regulation groups (1 (Also see "Do Not Disrespect NAD: FTC Stresses Compliance With Self-Regulatory Groups" - Pink Sheet, 4 Jun, 2007.), p. 11). - Robert W. Mitchell ([email protected]) |