This post was written by Joseph Green and Gonzalo Mon and originally posted on Kelley Drye’s Ad Law Access Blog.
The nation’s preeminent forum for mediating advertising claim disputes, the National Advertising Division (NAD) of the Better Business Bureau, recently analyzed whether Petmate had adequate substantiation to support claims that certain cat litter pans had “built-in antimicrobial protection” and that they could “inhibit bacteria growth.” Although the decision is most directly relevant to companies that make antimicrobial claims, it contains information that’s relevant to any company that uses tests to substantiate claims. The case also raises important questions as to the type of data needed to support claims made by products that incorporate antimicrobial additives that are registered by the U.S. Environmental Protection Agency (EPA).
There’s a lot going on in this case, but here are five key points:
- Petmate argued that product testing was not necessary because the Microban ingredient in its litter pans had been tested. The NAD disagreed, noting that just because a product is treated with an EPA registered pesticide does not, by itself, substantiate a product performance claim. Testing on the product is necessary. If sustained on appeal, this could raise questions for manufacturers of EPA regulated “treated articles” who often rely on testing that measures the efficacy of the additive in a given substrate material (e.g., different kinds of plastics), rather than individual product applications.
- The NAD reiterated that in order to make a “health-related claim,” such as the antimicrobial claims on the cat litter pans, an advertiser must have “competent and reliable scientific evidence.” This generally requires well-controlled studies with results that are statistically significance at the 95% confidence level. [EPA has stringent efficacy testing requirements to support registration of claims that a product will protect human health from bacteria, viruses, fungi, etc. Such data presumably would be sufficient to support advertising in the eyes of the NAD. However, for “non-public health claims,” which are limited to protection of the product from odors, staining, or other degradation caused by bacteria or mold, efficacy data is not required for registration of such a “treated article” additive. Rather, EPA may request such data (but rarely does) and instructs additive registrants (and their customers who use the additives in their products) to have such data on file.]
- Petmate submitted the results of a test conducted pursuant to an industry standard test designed to assess antimicrobial activity. The NAD was concerned, however, that the standard was designed to assess that activity on textile materials. Although Petmate argued that the test was also valid for plastic materials, such as cat litter pans, the NAD was not convinced.
- The NAD observed that the tests were conducted by Petmate’s supplier of Microban, the antimicrobial ingredient in its litter pans. Although the NAD prefers independent third-party tests, it will accept in-house testing as long as there is “evidence that adequate controls and safeguards were implemented to prevent bias.” Here, the NAD did not find such evidence.
- Even if the NAD had accepted the tests, it noted that results must translate into a meaningful benefit for consumers. Here, the NAD found that there was no evidence demonstrating that consumers would perceive a difference due to the inclusion of the antimicrobial agent in the Petmate litter pans.
Keep in mind that if you make antimicrobial claims, you also need to worry about EPA regulations. While companies that manufacture and sell “treated articles” (with only non-public health claims) do not have to obtain independent registrations for their products that incorporate an EPA-approved antimicrobial, they do have to comply with the conditions of the registration for the EPA-approved additive, including the types of claims that can be made and the products/materials in which the additive can be used. In addition, EPA regulations restrict how treated articles may be advertised. For example, antimicrobial claims should be printed in type of the same size, style, and color, and “should not be given any greater prominence than any other described product feature.”