Hunton Retail Law Resource

The National Advertising Division (“NAD”) was busy this past week. The organization recommended that several companies modify or discontinue claims made for the following consumer products.

NAD Refers Infrared Grill Ads to FTC for Review

The NAD passed along its concerns over certain ads for infrared grills to the FTC. Char-Broil LLC, a competitor of NexGrill Industries, maker of “Evolution Infrared Plus” grill, asked the NAD to investigate NexGrill’s advertising claims. The NAD referred the matter to the FTC after NexGrill failed to fully respond to the NAD’s inquiry.

According to the NAD, NexGrill made various claims about the efficacy and originality of the Evolution Infrared Plus grill in two different YouTube videos. While NexGrill offered a Consumer Reports article as support, the NAD concluded that the company’s express claims were unsupported. The NAD recommended that NexGrill discontinue its claims about performance benefits of its grill design and being the first to have such a design.

Additionally, the NAD found that the ads conveyed implied messages about benefits and capabilities of the Evolution Infrared Plus grill. Without substantiation, the NAD recommended that NexGrill end these claims.

NAD Inquiry Causes Moon Juice, a Real Company, to Discontinue Claims Related to “Brain Dust” and “Action Dust,” Two Actual Products

After an investigation by the NAD, supplement maker Moon Juice has discontinued claims regarding its “Brain Dust” and “Action Dust” supplements. The investigation was part of a Council for Responsible Nutrition initiative to review advertising claims regarding dietary supplements.

NAD requested that Moon Juice substantiate claims it made regarding its Action Dust and Brain Dust supplements. Moon Juice had claimed that Action Dust was “[d]esigned to support peak performance, stamina, and longevity,” and that the “formula helps regulate vital energy, encourages healthy metabolic function, and maximizes your ability to withstand stress and injury with ginseng, rhodiola, and more.”

Moon Juice claimed that the Brain Dust supplement was “[m]ade with enlightening herbs like astragalus and gingko,” and that the “adaptogenic elixir is designed to maintain healthy systems for superior cognitive flow, clarity, memory, creativity, alertness, and the capacity to handle stress.”

The packaging for both products claimed that they were “Medicinal Grade” and “All Organic or Wild.” The packaging for Action Dust also said “Bioactive Power Potion,” whereas the Brain Dust packaging said “Adaptogenic Potion.”

Moon Juice has voluntarily agreed to permanently discontinue these claims rather than provide substantiation.

NAD Recommends Modifications to Cocoa Extract Claims

The NAD has recommended that Mars Inc. alter certain advertising claims for its CocoaVia Cocoa Extract dietary supplement. The NAD asked for substantiation for two express claims about CocoaVia: (1) that cocoa flavanols are scientifically proven to promote cardiovascular health, and (2) that CocoaVia “delivers the highest concentration of cocoa flavanols.”

Mars was able to point to scientific studies that suggested that cocoa flavanols may support cardiovascular health. The NAD recommended that Mars change its phrasing to say that “studies indicate” cocoa flavanols support cardiovascular health rather than “scientifically proven.” The NAD also recommended that Mars more clearly indicate the basis of how it measured the “highest concentration of cocoa flavanols.”

Mars has indicated that it will take the NAD recommendations into account in its future advertising for CocoVia supplements.

NAD Recommends Trampoline Maker Discontinue Performance and Ratings Claims on Misleading Review Site

After a challenge by Vuly Trampolines Pty. Ltd., the NAD has found the website TrampolineSafety.com to be misleading because it is operated by trampoline manufacturer JumpSport, Inc. According to the NAD’s decision, despite JumpSport’s involvement in trampoline safety and design over the last 20 years, TrampolineSafety.com does not adequately disclose its connection to JumpSport. The website contains reviews conducted by an advertiser and feature JumpSport trampolines as the three top-ranked products.

JumpSport argued that the website could not be misleading because it contained disclosures of the connection between TrampolineSafety.com and JumpSport, but the NAD found that the disclosures were neither clear nor conspicuous enough to suggest that the site functions as an advertisement.

In addition to insufficient disclosures, the website made claims about the quality and safety of JumpSport products, including “World’s Safest Trampolines,” “the safest, highest quality trampolines at every budget,” and “first in safety.” The NAD decided that JumpSport did not have sufficiently reliable evidence to support its performance and safety claims for its products and recommended that JumpSport discontinue these claims. JumpSport has indicated that it will comply with the NAD’s recommendations.