NAD Holds Puffery Analysis Depends On Material Connection Disclosure

Church & Dwight ran ads for TheraBreath Mouthwash that featured a dentist in a white lab coat identifying him as Dr. Harold Katz. In some of the ads, Dr. Katz holds the product and states:"It's a better mouthwash. I guarantee it."

P&G challenged the ads, making two key arguments. First, P&G pointed out that the ads should clearly disclose that Dr. Katz is the founder of TheraBreath, rather than suggest he's an independent dentist. Second, P&G argued that Dr. Katz's statement conveyed an unsubstantiated claim that TheraBreath is better than other mouthwashes. Church & Dwight countered by arguing that the statement was puffery.

In an interesting decision, NAD held that the answer to the question of whether Dr. Katz's statement conveyed an objective claim – which would require substantiation – or whether it was puffery – which would not require substantiation – depended, in part, on whether Church & Dwight clearly disclosed Dr. Katz's connection to TheraBreath.