When Procter & Gamble Company (“P&G”) launched the Tide Purclean Laundry Detergent it made plant-based, “first”-to-the-market, and comparative claims in its marketing.  In a recent proceeding, the National Advertising Division (the “NAD”), considered, Seventh Generation, Inc.'s (“Seventh Generation”) challenges to these claims.  Below is a list of key takeaways from the NAD's decision:

Unqualified use of voluntary certification/labeling programs may not avoid a misleading claim.  

The front label of P&G's Tide Purclean bottle incorporated, among other elements, the PURCLEAN brand name (with “clean” in bolded letters), the claim “plant based” in smaller font and all caps, and the USDA certified bio-based product seal (with 75% biobased content disclosed in “very small” font inside the seal).  Seventh Generation argued that the front label falsely conveyed to consumers that P&G's Tide Purclean detergent “only cleans with plant-based ingredients.” 

In deciding whether P&G had a basis for its plant-based claims, the NAD considered P&G's reliance on its USDA certification.  While recognizing that USDA regulations allow for bio-based claims where a laundry detergent uses at least 34% renewable carbon—a threshold exceeded by P&G's Tide Purclean—the NAD noted that the “USDA's BioPreferred seal program” does not preclude the NAD from concluding that a plant-based claim is misleading. 

Under the FTC's Guides for the Use of Environmental Marketing Claims (“Green Guides”), “[t]o avoid deception, marketers should use clear and prominent qualifying language that clearly conveys that the certification or seal refers only to specific and limited benefits.”  Based on this guidance, the NAD determined that P&G's plant-based language “reasonably convey[ed]” to consumers that the Tide Purclean product was 100% plant-based, especially when used with the name PURCLEAN and where the USDA seal (which disclosed that the product was only “75%” of biobased) was “very small” and failed to “meaningfully qualify” the claim.  Thus, the NAD recommended that P&G “clearly and conspicuously disclose the limitations of its plant-based claim—i.e. that the product is 75% plant based.

Be aware of and comply with standardized testing requirements.

To substantiate its “1st Plant-Based Detergent With The Cleaning Power of Tide” claim, P&G conducted a comparative stain removal test comparing the performance of Tide Purclean to Tide Original and two other Tide detergents using ASTM D4265-14, the Standard Guide for Evaluating Stain Removal Performance in Home Laundering.  The test was conducted using two fabric types and eighteen different stains and showed that the products were at parity.  Thus, the NAD concluded that P&G had a reasonable basis for its claim because its evidence included “reliable, industry-standard ASTM testing.”

Seventh Generation challenged P&G's “first” claim on the ground that its product was the first to achieve parity with Tide Original.  Seventh Generation conducted an ASTM D-4265 test that tested one fabric and twelve stains and showed that Seventh Generation's detergent was better than Tide Purclean.  That said, because ASTM guidance recommends testing on multiple fabric types, the NAD concluded that Seventh Generation's evidence “was not ‘stronger' or ‘more persuasive'” than P&G's, where Seventh Generation only tested one fabric type and P&G tested two, per ASTM guidelines.  Therefore, the NAD concluded that Seventh Generation failed to rebut P&G's reasonable basis for its “first” claim.

Performance testing should replicate consumer usage.

To substantiate its “4x Cleaning Power of Leading Natural Detergent” claim, P&G conducted a test using ASTM D425 guidelines.  It tested one dose of Tide Purclean to four doses of Purex Natural Elements.  Seventh Generation argued that P&G's testing using four doses for a single load of laundry was not “consumer relevant.”  The NAD agreed.  Under NAD precedent, “the most reliable measure of a product's performance is demonstrated by tests designed to test the product in the same manner the product is directed to be used by consumers” (emphasis added).  Thus, while P&G argued that Purex instructed consumers to use more than one dose for larger or heavily soiled loads, the NAD concluded that because Purex did not suggest using four doses in a single load for “best results,” consumers were unlikely to do so.  Therefore, because, the consumers encountering P&G's “4x cleaning power” claims were unlikely to understand the claim to mean that a single dose of Tide Purclean was compared to four doses of Purex Natural Elements, the NAD recommended that P&G discontinue this claim.

Additionally, while P&G claimed that Purex Natural Elements was the leading natural detergent “based on unit sales,” Seventh Generation argued that it was in fact the leader.  Concluding that it could “not ignore” that P&G did not include Purex Natural Elements on its website along with its recitation of competitive natural laundry detergents which included Seventh Generation, the NAD acknowledged the potential for consumer confusion.  Thus, it recommended that P&G “more clearly describe” which product it compared as the leading natural detergent.

The case is Seventh Generation, Inc. v. Procter & Gamble Co., Case No. 6392 (NAD July 24, 2020).

Originally Published By Finnegan, November 2020

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