Glad advertises that its ForceFlex MaxStrength bags are “25% more durable.” More durable than what? If you follow an asterisk, you'll learn that they are 25% more durable than Glad's own 13-gallon ForceFlex bags. A competitor – presumably worried that consumers would think that Glad was making a comparison to its bags – brought a challenge before the NAD, questioning whether the basis of comparison was sufficiently clear. NAD didn't think so.
Glad pointed to its online disclosures, but NAD didn't think they were sufficient. For example, on Glad's website, “the disclosures appear at the bottom of the webpage and require scrolling through other content unassociated with the claim (and occasional restatements of the claim) before reaching the disclosure.” And on another page, the disclosure appeared “in white text on a grey-trash-bag background,” making it “difficult to notice or read without zooming in on the image.”
Glad argued that it included clear disclosures on all packages. NAD noted that “although some versions of some sides of the product packaging include sufficient disclosures, consumers may only look at one panel of the package before making a purchase. Typically, consumers may only see the consumer-facing panel,” which in this case included the durability claim “with a disclosure far from the claim it qualifies.” NAD recommended Glad include the disclosure “on every panel where the claim is made.”
NAD's analysis on package disclosures is different than what we've seen from some courts that have held that it's reasonable to expect consumers to flip a package over and look at relevant information on other sides. Click here, for an example. Glad indicated they would appeal that portion of the decision, so we'll need to see what NARB says. In the meantime, this case is a reminder that NAD continues to have high expectations for advertisers making claims on packages (and arguably low expectations for consumers reading them).
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