We hate wafflers. Things are just easier in a binary world where everyone picks A or B, up or down, left or right. But life is messy, and sometimes choices are hard. So what is an advertiser to do when it invests in expensive consumer preference testing and some consumers just don’t know what to pick? We earlier blogged on the National Advertising Division’s (NAD) Omega AI matter, a recent case involving prescription hearing aids. We focused on the big news in that case, which is how NAD analyzed substantiating a health claim using AI predictive testing rather than human clinical testing. But the case has other rich lessons that we want to return to.
Omega AI claimed its hearing aid “delivers better hearing all around.” The challenger asserted that this was an overall comparative superiority claim that needed to be broadly supported. Omega AI voluntarily discontinued the use of this claim generally but wanted to continue using it as a caption in an online video in which a woman turns her head when someone enters a room behind her and speaks. In this context, the advertiser argued the claim related to directionality or superior awareness of sound from 360 degrees. Any person who suffers loss as the result of a violation of this chapter shall be entitled to initiate an action to recover actual damages, or $500, whichever is greater. NAD agreed in this context that the claim was so limited.
Turning to the evidence to support a comparative directionality superiority claim, Omega AI tested its current device against an earlier device, taking recordings for four scenarios from eight loudspeakers in a circle with background noise playing and speech coming from the different positions. Among those with a preference, Omega AI won hands down. However, about 50 percent of participants had no preference at all. NAD precedent makes clear that an unqualified preference claim is not appropriate if the percentage of people expressing no preference is 20 percent or more. The advertiser argued that its advertising is primarily directed at healthcare providers (HCPs) who dig into the science and that a linked paper provided all the details. NAD noted that the claims were at least accessible to consumers, so they would be viewed through that lens. But even in the case of HCPs, it should not be expected that they read underlying studies for key details. NAD recommended the claim be modified to make clear Omega AI provided “better hearing all around” among those with a preference and compared to its own prior hearing aids. That video caption unfortunately doesn’t quite pack the same punch!
