In a case of first impression, the National Advertising Division (NAD) recently issued a decision concerning substantiation for consumer preference claims that should put advertisers on alert.
In, Euro-Pro Operating, LLC, Shark-brand Vacuum Cleaners, NAD Case Reports #5717 (May 29, 2014), the NAD reviewed an advertising claim Euro-Pro made for its Shark-branded vacuum cleaners in various media, including television commercials, infomercials, online advertising, and on product packaging. Euro-Pro’s competitor, Dyson, Inc., brought the claim to the NAD’s attention.
The advertising claim at issue was the following:
“America’s Most Recommended Vacuum Brand.*
*Based on percentage of consumer recommendations for upright vacuums on major national retailer websites through August 2013, U.S. Only.”
The first question the NAD addressed was the meaning of the claim. Euro-Pro defended that the claim was not comparative and only relayed to consumers that Shark is “America’s Most Recommended Brand” based upon percentages of consumer reviews for upright vacuums on major national retailer websites. Dyson, on the other hand, argued that the claim was comparative and implied that Shark is the most recommended and preferred vacuum over other brands among vacuum owners nationwide.
On this issue, the NAD mostly agreed with Euro-Pro’s position, finding that “America’s Most Recommended Vacuum Brand” and the qualifying language conveyed the message that Shark is the most recommended, and not necessarily preferred, brand of vacuum by owners of vacuum cleaners in the U.S. (This is a somewhat surprising finding given the NAD’s tendency to require advertisers to substantiate all reasonable interpretations of a claim. Here, it seems judicious to argue that the “most recommended” claim could reasonably be interpreted to be an implied comparative claim.)
The NAD next examined the pivotal issue of whether the aggregated online consumer reviews were sufficiently reliable to serve as substantiation for the claim. The NAD acknowledged that “consumers have come to regularly rate and describe the products that they purchase online, and to use and rely on online reviews in making their purchasing decisions.” But the NAD cautioned that advertisers must still adhere to the NAD’s “standards of truthfulness, reliability, and representativeness” when using new technology and information to support advertising claims.
In lieu of a survey or more traditional market data, Euro-Pro presented a compilation and analysis of existing online consumer reviews to substantiate the claim. It collected and amalgamated data from online sites, specifically answers consumers gave when asked if they would recommend the particular product under review. The percentage of recommendations for various upright vacuum cleaner brands were tallied and compared.
The NAD found that the over 10,000 self-reported consumer reviews represented a statistically significant sample. Nonetheless, the NAD found that the consumer reviews lacked scientific integrity, were unverified, and were not demographically representative. Specifically, the NAD pointed out that the majority of upright vacuum sales take place in brick-and-mortar stores, so the NAD questioned the reliability of the online reviews as substantiation. Moreover, the NAD found that there is a difference between the reliability of online reviews for consumers who directly read and analyze them when considering which product to purchase and their reliability as the basis of a broad advertising claim regarding the opinions of a wide swath of U.S. consumers.
The NAD was also troubled by the absence of demographic information in the reviews that is relevant to this market, such as family income. The NAD found that the aggregated online review data did not represent the relevant population at hand, that is, American upright vacuum cleaner consumers. In addition, the NAD noted that, although Euro-Pro collected data from a broad range of retailer websites, the actual reviews utilized in its analysis were more limited. For example, the websites for Amazon, Target, Big Lots, and Costco do not include a “recommendation” question for reviewers and consequently their data was not included in the aggregated support for the claim. Because these retailers account for over 20% of American upright vacuum sales, the NAD was concerned that Euro-Pro’s data may not be representative of online purchasers or online reviewers in general.
Based on these concerns and the evidence presented, the NAD determined that Euro-Pro’s evidence was insufficiently reliable to support its “America’s Most Recommended Vacuum Brand*” claim. Euro-Pro is appealing the decision to the National Advertising Review Board (NARB), so stay tuned.
What this case means: In this case, the NAD refused to accept consumer reviews that were aggregated from many online sources as substantiation for the “most recommended” advertising claim. The NAD determined that such aggregation across multiple platforms was not a reliable and demographically representative basis to support the claim at issue. In light of this decision, advertisers using crowdsourced or aggregated data collected across multiple platforms to support claims should take heed and consider whether such data would pass muster under the NAD’s strict and evolving standards of truthfulness, reliability, and representativeness.