Yes, we know that finding the line between claims and puffery can sometimes be fun and sometimes be painful. In our first puffery blog post last week, we focused on “best smelling” claims for sunscreen. Now we turn to the sticky subject of athletic tape.
Mueller Sports Medicine challenged certain claims made by Howies Hockey that its Athletic Tape and Hockey Tape were the “World’s Highest Quality.” Mueller argued that the relative quality of athletic tapes is something one can measure and test and because of this, Howies’ claim had to be supported. NAD instead found that when used by itself, such a claim would be understood as a statement of corporate pride or bravado that does not require support.
In some contexts, Howies used the tagline with or near descriptions of product attributes, things like performance, durability and adhesion.
In that case, NAD recommended discontinuing or modifying the claim to avoid conveying product superiority. It is not clear from the decision exactly how to do that, but presumably some clear separation between the tagline and any performance discussion would suffice.
An interesting addition to the decision was a specific recommendation that Howies make “bona fide, good faith efforts” to instruct third-party resale sites to discontinue or modify the claim as outlined in the decision. Often whether an advertiser has control over third parties or what their obligations are regarding third parties comes up in the context of a compliance challenge. Here, NAD has addressed the issue up front. We will keep watching to see if this is an outlier or a new trend and whether NAD gives any guidance as to what qualifies as bona fide, good faith efforts.
