narb panel #222 - Ithaca College

NARB PANEL #222
Appeal of the NAD Final Decision Regarding Advertising for
Phillips Oral Healthcare LLC’s Philips Sonicare FlexCare Platinum
Panel Members
Scott Hamula (Chair)
Associate Professor and Chair Strategic Communications
Ithaca College
Faruk Capan
Chief Executive Officer
Intouch Solutions, Inc.
Manos Spanos
Vice President, Brand Marketing
PepsiCo, Inc.
Darlene Abubakar
Senior Director, Naitonal Advertising and Marketing Programs
Amtrak-National Railroad Passenger Corp.
Representing the National Advertising Review Board
Alan Cohen, Vice Chair
Saveeta Dhanai, Coordinator
Representing the Advertising Self-Regulatory Council
Lee Peeler, President
Representing the National Advertising Division
Laura Brett, Director
Martin Zwerling, Deputy Director
Representing Philips Oral Healthcare, LLC
Lynne Bezikos LeBlanc, Senior Counsel
Michael H. Steinberg, Sullivan & Cromwell LLP
Lauren M. Cruz, Sullivan & Cromwell LLP
Representing The Procter & Gamble Company
Kenneth Blackburn, Associate General Counsel
Adam Heider, Counsel
Svetlana Farrell, DDS, Ph.D., Section Head, Global Oral Care Clinical Operations
Amanda Heffernan, Principal Scientist
Nancy J. Felsten, Davis Wright Tremaine LLP
Joanna Summerscales, Davis Wright Tremaine LLP
REPORT OF NARB PANEL 222
Decision Issued: December 1, 2017
Appeal of NAD Final Decision Regarding Claims by
Philips Oral Healthcare LLC for
Sonicare Electric Toothbrushes
Background
Claims made by Philips Oral Healthcare LLC (“Philips”) for its Sonicare electric toothbrushes
were challenged by The Procter & Gamble Company (“P&G”), maker of competing Oral-B
electric toothbrushes.
The challenged claims were made in two television commercials and include the following:
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“Compared to Oral-B 7000, Philips Sonicare FlexCare Platinum removes significantly
more plaque.”
“Removes significantly more plaque* versus Oral-B
*Philips Sonicare FlexCare Platinum with InterCare brush head,
in deep clean mode, after a single use, versus Oral-B 7000 with
Cross Action brush head”
“This is the sound of sonic technology cleaning deep between teeth … hear the
difference?”
The National Advertising Division (“NAD”) determined that the challenged commercials
reasonably conveyed a message that the Philips Sonicare line of electric toothbrushes was
superior in removing plaque compared to the Oral-B line of electric toothbrushes. The NAD
also determined that the challenged commercials reasonably conveyed a message of Philips
Sonicare’s superior long-term plaque removal and improved oral health compared to Oral-B
electric toothbrushes. The NAD found that Philips did not provide a reasonable basis for
these messages and recommended that the “removes significantly more plaque” claim be
discontinued.
The NAD also determined that one of the messages reasonably conveyed by the challenged
commercials is that Philips Sonicare’s “sound of sonic technology” correlates to a superior
performance benefit in cleaning deep between teeth compared to Oral-B. The NAD found
that Philips did not provide a reasonable basis for this message and recommended that the
claim be discontinued.
Finally, the NAD questioned the reliability of the Maclure study offered by Philips in support
of the challenged claims.
Philip’s has appealed NAD’s decision in its entirety.
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Findings and Conclusions
In the absence of consumer perception evidence, the panel steps into the shoes of the
consumer to determine what messages are reasonably conveyed by the challenged
advertising. In making this determination, the panel considers the specific claims and
disclosures in the context of the challenged advertising and the overall net impression of the
advertising as normally viewed by consumers.
“Start your day” video commercials
Two “Start your day” video commercials were challenged by P&G – a thirty second version
and a fifteen second version.
Thirty second version
The thirty second version opens with a voiceover stating “Every day starts better with a
healthy smile.” Several different Philips Sonicare electric toothbrushes are shown in quick
succession, 1 and the voiceover then states that Philips Sonicare is the number one choice of
dentists while “No. 1 power toothbrush brand Recommended by Dental Professionals” is
displayed on-screen.
The commercial then changes to a side-by-side image of a Philips Sonicare and an Oral-B
toothbrush, which shifts to a display of only the Philips Sonicare model. The voiceover
states:
“Compared to Oral-B 7000, Philips Sonicare FlexCare Platinum
removes significantly more plaque”
The following is displayed, for approximately 7 seconds, next to the Philips Sonicare brush:
“Removes significantly more plaque* versus Oral-B
*Philips Sonicare FlexCare Platinum with InterCare brush
head, in deep clean mode, after a single use, versus Oral-B
7000 with Cross Action brush head”
The asterisked disclosure is displayed in smaller and fainter print compared to the more
prominent “Removes significantly more plaque* versus Oral-B” claim.
The commercial then displays a simulation of a brush cleaning teeth, accompanied by music
and the sound of the Philips Sonicare electric toothbrush, as the voiceover states:
While the panel agrees with Philips that the different toothbrushes are not displayed long enough for consumers to
identify the model, the panel believes they are displayed long enough for consumers to recognize that they are different
in appearance.
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“This is the sound of Sonicare technology cleaning deep between
teeth.”
The music stops and an Oral-B brush (with “Oral-B 7000” displayed below it) is shown being
turned on as the voiceover asks “hear the difference?”
A woman is then shown brushing as the voiceover states:
“Get healthier gums in just 2 weeks versus a manual
toothbrush and experience an amazing feel of clean.”
In the final segment, the voiceover states “Save now when you buy Philips Sonicare” as the
visual states “Save up to $60 on Philips Sonicare DiamondClean.”
Fifteen second version
The challenged fifteen second commercial is a truncated and slightly modified version of the
thirty second commercial. With respect to the Sonicare/Oral-B comparison, the voiceover is
modified to eliminate reference to the specific Philips Sonicare model [i.e., FlexCare
Platinum] and states:
“Philips Sonicare removes significantly more plaque versus
Oral-B 7000.”
The visual display accompanying the above voiceover is also slightly modified to add “Philips
Sonicare” so that it reads “Philips Sonicare Removes significantly more plaque* versus
Oral-B.” The asterisked disclosure is the same as in the thirty second version.
The fifteen second commercial eliminates (a) any mention or comparison of the sounds of
the Philips Sonicare and/or Oral-B toothbrushes, and (b) the statement that consumers can
get healthier gums in just 2 weeks versus a manual toothbrush.
Do the challenged commercials reasonably convey a line claim with respect to Philips
Sonicare’s superiority in plaque removal compared to Oral-B?
Prior NAD cases have identified factors to be considered in deciding whether a line claim has
been made in challenged advertising:
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Whether there are general brand references in the advertisement;
Whether the advertising copy effectively limits the applicability of the claim;
Whether only one variety of the product is shown; and
Whether there is a beauty shot of products that may serve to reinforce the extended
applicability of the claim.
In the challenged advertising, there are several general brand references to Philips Sonicare
and more than one variety of the product is shown. More importantly, the commercial does
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not effectively limit applicability of the superior plaque removal claim to a specific Philips
Sonicare model/brush combination (FlexCare Platinum with InterCare brush head)
compared to a specific Oral-B model/brush combination (Oral-B 7000 with Cross Action
Brush head).
While the voiceover in the thirty second commercial names the Oral-B 7000 and Philips
Sonicare FlexCare Platinum toothbrushes as the objects of comparison, 2 the accompanying
visual display does not effectively communicate that only two specific model/brush
combinations are being compared. While an Oral-B and Philips Sonicare toothbrush are
shown side-by-side, consumers will not likely know which model toothbrush and brush head
combination is being displayed. The visual that is clearly displayed on the screen –
“Removes significantly more plaque* versus Oral-B” in the thirty second commercial and
“Philips Sonicare Removes significantly more plaque* vs. Oral-B” in the fifteen second
commercial – makes only general brand references and does not identify the specific
toothbrush models and/or brush heads being compared.
Philips argues that further details as to the comparison are included in the asterisked
disclosure displayed on the screen. However, after viewing the challenged commercials, the
panel agrees with the NAD that the asterisked disclosure is not clear and conspicuous. It
appears in a smaller font and lighter print than the “Removes significantly more plaque*
versus Oral-B” claim, and the faint white lettering against a light gray/white background
makes the disclosure difficult to read and unlikely to be noticed.
Because the asterisked disclosure is not clear and conspicuous, consumers viewing the
advertisement are not likely to understand several important material details about the
comparison being made:
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The displayed “Removes significantly more plaque versus Oral-B” claim is not
appropriately qualified to indicate the specific models that are the object of
comparison;3
Consumers are not appropriately informed that the claim is limited to two specific
brush heads;
Consumers are not appropriately informed that the claim is limited to a comparison
of toothbrushes in deep clean mode; and
Consumers are not appropriately informed that the claim is limited to a comparison
of toothbrushes after a single use.
As noted above, the voiceover in the fifteen second version names the Oral-B 7000 but refers only generally to
“Philips Sonicare.”
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While the panel appreciates that the two models are identified in the voiceover of the thirty second commercial, a
single voiceover reference is not sufficient to overcome the broader message reasonably communicated by the broader
contemporaneous visual display as well as the general brand references made throughout the commercials.
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Based on the net impression of the challenged commercials, the panel agrees with the NAD
that one of the messages reasonably conveyed is a line claim with respect to Philips
Sonicare’s superior plaque removal as compared to Oral-B.
Do the challenged commercials reasonably convey a message of Philips Sonicare’s superior
long-term plaque removal and improved oral health compared to Oral-B?
The NAD found that the challenged commercials reasonably conveyed a message of Philips
Sonicare’s superiority in long-term plaque removal and improved oral health compared to
Oral-B. This finding was based in part on the opening “every day starts better with a healthy
smile” statement, the claim that Philips Sonicare is the number one choice of dentists, and
the claim that consumers can “get healthier gums in just two weeks versus a manual
toothbrush.”
The panel does not agree that the challenged commercials reasonably convey a message of
Philips Sonicare’s superiority over Oral-B in long-term plaque removal and improved oral
health. The “every day starts better” and “number one choice of dentists” claims do not
reference a long-term time period, and the final claim with respect to consumers getting
healthier gums in just two weeks versus a manual toothbrush – which was not challenged
by P&G in this proceeding – will reasonably be understood by consumers as being limited to
a comparison of Philips Sonicare electric toothbrushes versus a manual toothbrush. Overall,
the panel finds that the consumers will not reasonably take away the message that a longterm benefit is being claimed with respect to the comparison between Philips Sonicare and
Oral-B electric toothbrushes.
Is the Maclure study reliable?
The NAD questioned the reliability of the Maclure study, a cross-over study offered by
Philips in support of the challenged commercials, based on a number of concerns.
First, the NAD questioned the relevance of the Maclure study because it was conducted in
the United Kingdom. The NAD noted that Philips provided no evidence demonstrating that
findings from a study population in the U.K. are relevant to the U.S. population with respect
to plaque scores. However, the panel notes that the NAD has previously accepted Canadian
studies assessing plaque as relevant to the U.S. population, and believes that U.K. studies
should similarly be accepted as relevant to the U.S. population absent any indication that
the populations have different oral health profiles relating to plaque.
The NAD also found that the user instructions provided to Maclure study participants were
not provided in a fair and balanced manner because the Oral-B instructions were provided
without images that normally accompany the written instructions. However, the panel
believes that the written instructions furnished to test participants were sufficient to
adequately inform the participants as to proper brushing techniques in this study where the
brushings were professionally supervised in accordance with the test methodology.
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The NAD also questioned whether the Maclure study results were consumer relevant
because the study tested the Philips Sonicare and Oral-B brushes in their 3-minute deep
clean mode instead of the 2-minute regular mode that is recommended for most
consumers. While the panel agrees with Philips that it is acceptable to compare the Philips
Sonicare and Oral-B electric toothbrushes in a deep clean mode, since both brands provide
consumers with a deep clean option, the panel notes that any claims based on the Maclure
test would need to clearly and conspicuously disclose in the body of the claim that they are
based on testing in the deep clean mode.
The NAD also questioned whether the Maclure statistical analysis was done properly
because the pre-brushing mean baseline plaque scores on the actual testing days (days 14
and 21) 4 were the same as the mean baseline plaque scores in preliminary assessments
used to assign the study participants to random groups; this suggested to NAD that the
wrong baseline was used in calculating plaque removal. However, there is nothing in the
record to show that the mean baseline plaque scores identified by Philips as the prebrushing scores on testing days were not accurate.
Finally, the NAD questioned whether test results showing an 8.7% reduction in mean plaque
improvement scores for Philips Sonicare (1.87) as compared to Oral-B (1.64) were
consumer relevant or sufficient to support a claim that Philips Sonicare removes significantly
more plaque. However, the panel believes that an 8.7% reduction in mean plaque reduction
scores, which represents 14% more plaque reduction, is consumer relevant and is sufficient
to support a “removes significantly more plaque” claim in the absence of any evidence in
the record showing why that difference is not consumer relevant.
While the panel finds that the Maclure study is methodologically sound and that the results
submitted by Philips show consumer relevant differences, the panel agrees with the NAD
that the Maclure does not support the line claim found to be reasonably conveyed by the
challenged commercials because it only tested one specific Philips Sonicare model/brush
head combination compared to one specific Oral-B model/brush head combination.
The NAD noted that the Maclure study was not significantly different from other single-use
studies previously reviewed by NAD. In a previous case involving a challenge to plaque
reduction claims made by Philips based on single-use studies, the NAD acknowledged that
single-use studies could support a “carefully qualified comparative single brushing plaque
reduction claim.” While the panel finds that the challenged advertising in this case is not
sufficiently qualified, the panel’s decision does not preclude Philips from making a truthful
Test participants were initially assessed for baseline plaque to ensure minimum plaque levels and for purposes of
randomization. After the initial assessments, participants were assigned to random groups and given a period of time to
use the assigned toothbrush. On day 14 of the test, plaque reduction measurements were taken for the first brush used;
participants were then given the other brush and on day 21 plaque reduction measurements were taken for the second
brush.
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and carefully qualified comparative single brushing plaque reduction claim based on the
Maclure study.
Do challenged commercials reasonably convey a message that Philips Sonicare’s “sound of
sonic technology” correlates to a superior performance benefit of Philips Sonicare electric
toothbrushes as compared to Oral-B electric toothbrushes?
The panel does not agree with the NAD’s finding that the voiceover stating “this is the sound
of Sonicare technology cleaning deep between teeth … hear the difference?” in the
challenged advertisements reasonably conveys a superior performance benefit of Philips
Sonicare versus Oral-B in cleaning deep between teeth. The voiceover does not use
comparative language such as “deeper,” and does not reasonably link the sound of the
Philips Sonicare electric toothbrush to a specific benefit in cleaning teeth. Overall, the panel
agrees with Philips that this part of the challenged advertising reasonably communicates
only a comparison of the sound of Philips Sonicare’s electric toothbrushes to the sound of
Oral-B electric toothbrushes.
Decision
The panel recommends that Philips discontinue the challenged “removes significantly more
plaque” claims. This decision does not preclude Philips from making a truthful and carefully
qualified comparative single brushing plaque reduction claim based on the Maclure study. 5
The panel thanks Philips and P&G for their commitment to and participation in the
advertising industry’s self-regulatory efforts to ensure the truthfulness and accuracy of
advertising claims.
Advertiser’s Statement
Philips Oral Healthcare, LLC (“Philips”) accepts, and will comply with, the
NARB’s decision on advertising for Philips Sonicare Flexcare Platinum. Philips appreciates the
NARB’s thoughtful reversal of the NAD’s interpretation of the Start Your Day advertisements
with respect to the long-term health claim and comparative use of sound for the two
toothbrush products. Philips also appreciates the NARB’s well-reasoned reversal of the
NAD’s criticism of the Philips’ study, and is pleased that the NARB accepted Philips’ study as
methodologically sound and sufficient to support the consumer relevant plaque removal
superiority of Philips Sonicare FlexCare Platinum under the tested conditions. Philips also
appreciates the NARB’s efforts to provide clear guidance for future advertisements and
clarify inconsistencies in NAD precedent in order to hold all advertisers to the same
standards when making similar claims. Philips is fully committed to the self-regulatory
The panel believes that a carefully qualified comparative single brushing plaque reduction claim based on the Maclure
study would, at a minimum, need to clearly and conspicuously (a) identify, in the body of the claim, the tested
toothbrush models and brush heads; (b) disclose, in the body of the claim, that the toothbrushes were tested in deep
clean mode for 3 minutes; and (c) disclose that the test results were based on a single brushing by test participants.
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process and will take the NARB’s recommendations into consideration when developing
future advertisements.
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