Performance Claims: Acing The "Adequate And Proper Test " Requirement

This article was co-authored by Brenda MacDonald

Performance claims are ubiquitous. Phrases like "new and improved," "consumers prefer" and "three out of four doctors recommend" bombard us as we watch television, listen to the radio or surf the web. Performance claims are popular because they work. As consumers, we seek out the best products and the biggest bang for our buck. This mini-paper takes as its subject the legal rules that govern the making – and keeping – of those promises.

In a paper of this length, it is not possible to canvass comprehensively the issues related to claim substantiation. Rather, the purpose of this note is to plant a few signposts to guide the advertiser’s trek through some difficult legal terrain. The paper charts a course around the snags and pitfalls that can trip up a promising advertising campaign, setting out an analytical plan of attack that may be applied to any claim, whether comparative, self-comparative or non-comparative. Along the way, it