"Bad Internet?": Disparaging And Unsubstantiated Claims In Comparative Advertisements

On May 5, 2023, the National Advertising Division (NAD) of BBB National Programs handed down its Final Decision in T-Mobile USA, Inc. v. Comcast Cable Communications Management, LLC. The NAD found that Comcast made several express and implied claims that were disparaging and/or unsubstantiated regarding T-Mobile's home internet service, T-HINT, by way of television and online advertising. The decision is a useful reminder that advertiser claims must be (1) truthful, (2) not misleading, and (3) supported by a reasonable (and often evidentiary) basis.

In the NAD case, T-Mobile asserted that Comcast made several express and implied claims that lacked evidentiary support and/or were "falsely disparaging." Those challenged claims appeared in two television commercials (i.e., the "Nocturnal" Commercial and the "Birdwatchers" Commercial) and a webpage comparing Comcast's Xfinity network to T-HINT. The claims at issue were: