NARB is the appellate unit of the advertising industry’s system of self-regulation.MSD Consumer Care, Inc., a/k/a Merck Consumer Care, a competing manufacturer of sunscreen products, challenged advertising claims for the product before the National Advertising Division (NAD). NAD is an investigative unit of the advertising industry’s system of self-regulation, and is administered by the Council of Better Business Bureaus.
The challenged claims were made primarily on product packaging and in print, website and in-store advertising.
In the underlying case, NAD determined that the “beach strength” claim as it appeared in the advertising at issue did not convey an implied message that the Neutrogena products were a unique category of sunscreens or superior to broad spectrum sunscreens with the same SPF value. NAD noted that Neutrogena had voluntarily and permanently discontinued use of “Now” in connection with the claim “Now, the whole family can feel protected,” which the NAD found was necessary and appropriate.
However, NAD determined that one message reasonably conveyed by the “water + sun barrier [lotion or spray]” claim was that the product is waterproof and/or provides complete protection from the sun. NAD determined that the message was not supported by the record and recommended that the claim be discontinued. Neutrogena appealed that finding to the NARB.
Neutrogena argued before NARB that it was appropriate to refer to sunscreen as a sun “barrier” because the U.S. Food and Drug Administration (FDA), which regulates sunscreen products, used that term in the following sentence on one page of the FDA website that explains to consumers how sunscreens work: “Sunscreens provide a chemical barrier that absorbs or reflects UV radiation and prevent the passage of UV to the skin.”
The panel noted, however, that although the FDA used the word “barrier” in an information piece directed to the public, NARB’s decision would be based on the context in which the more abbreviated “water + sun barrier” claim appeared in advertising.
In the context of the prominent placement of “water + sun barrier” on the front label – where “barrier” is not used as part of an explanation as to how the product works but rather can be viewed as a product type or descriptor – the panel found that “water + sun barrier” would be understood by many consumers to indicate the degree of protection provided by the product. The panel noted that at least one of the messages reasonably conveyed was that the sunscreen completely blocks water, as well as the sun’s rays.
Neutrogena agreed that its product does not completely block water and the sun. The panel found that Neutrogena did not provide a reasonable basis for the claim and recommended the company discontinue the claim.
Neutrogena, in its advertiser’s statement, said the company “respectfully disagrees” with certain findings of the NARB panel.
“The word ‘barrier’ is not misleading to consumers in the context of protection against water or sun. Neutrogena continues to maintain that any determination that its use of the word ‘barrier’ is misleading unreasonably means that an advertiser cannot use in its sunscreen product labeling and advertising the same terms that FDA uses in its own communications to consumers,” the company said. However, Neutrogena added, the company “respects the NAD/NARB self-regulatory process, however, and will take NARB's recommendations into account in preparing all future sunscreen labeling and advertising.”