In formulating a health and safety-related claim, advertisers walk a fine line in accurately conveying the results of reliably conducted studies to support their claims. Disclaimers and other qualifying language are limited tools advertisers can use to mitigate the risk of a claims challenge. But as a recent NAD decision shows, just because a study is reliably conducted, does not necessarily mean it is a good fit to support an advertising claim. Thus, basing a claim on a reliably conducted study can still be held to be misleading if the study results do not closely reflect what the average consumer could realistically expect to achieve. What’s more, this recent decision reminds advertisers that a lengthy disclosure may not be sufficient when it fails to disclose a wide variability in observed study results.
On February 25, 2020, the National Advertising Division (NAD) issued a decision and recommendation that Trek Bikes discontinue use of the claim that its WaveCel helmet is “up to 48x more effective than traditional foam helmets in protecting your head from injuries caused by certain cycling accidents.” Although the cited “Bliven Study” demonstrated that the WaveCel helmet in fact outperformed traditional foam helmets for head injury protection in all impact scenarios, the NAD was concerned the claim conveyed the implied message that “People who use the WaveCel Helmet will have little to no risk of experiencing a concussion.”
In support of its claim, Trek submitted extensive background materials, including an expert report that found that the Blevin Study’s conclusions properly followed from the study results. Trek also defended its claim by pointing to its lengthy disclosure which provided the citation and URL to the Bliven Study, and included qualifying language stating, “Probability of injury in an actual accident depends on numerous factors, including nature of impact and individual health.” Trek argued that the “up to 48x” qualifier “reasonably conveyed the truthful message that the WaveCel helmet’s superior head injury protection performance, as compared to traditional foam helmets, will vary but that up to 48x more effective head injury protection was observed”.
The NAD disagreed, opining that the “48x” result represented the best result from a single impact scenario that had been cherrypicked from four impact testing scenarios. Moreover, the study concluded that the helmet’s relative performance varied widely depending on the speed and angle of the impact, with results ranging between 5-48x improved head injury protection as compared with traditional foam helmets. The NAD found that Trek’s proffered support did not demonstrate that an appreciable number of consumers would experience an impact at the exact speed and angle that led to the “up to 48x more effective than traditional foam helmets”. Indeed, the study itself cautioned that its results were “limited to these specific study parameters and may not be extrapolated outside the tested parameter range.” Finally, the NAD determined that Trek’s disclosure did not adequately qualify the ad’s safety message because it contained a hyperlink that required consumers to click through to another page to access the material information limiting the claim.
The NAD, however, praised the helmet and study results as “impressive” and representing “a meaningful innovation that benefits consumer safety,” but cautioned that the claim should “more closely reflect the increased protection that consumers can expect to achieve with the helmet.” In recommending that Trek discontinue the claim, the NAD encouraged the advertiser to make truthful and accurate claims that are narrowly tailored to the Bliven Study results, such as by modifying the claim to disclose the wide variability of study results. In a statement, Trek agreed to comply with the decision and expressed appreciation for the NAD’s validation of its product. Importantly, the helmet has not been tested for protection efficacy in banging your head against the wall from coronavirus-related cabin fever.