Who: National Advertising Division (NAD) in the United States – the investigative unit of the advertising industry’s system of self-regulation administration and administered by the Council of Better Business Bureaus
Where: United States
When: 29 May 2014
Law stated as at: 14 July 2014
What happened:
A recent NAD decision found that survey information from multiple online venues was in sufficiently reliable and representative to support a broad advertising claim made by Euro- Pro made for its Shark-branded vacuum cleaner in various media.
The claim was bought by Euro-Pro’s competitor – Dyson, Inc., who challenged the following express claims made by Euro-Pro:
- “America’s Most Recommended Vacuum”
- “America’s Most Recommended Vacuum Brand.*
- *Based on percentage of consumer recommendations for upright vacuums on major national retailer websites through August 2013, U.S only”
At the heart of the issue was that Euro-Pro sought to substantiate its “most recommended” claim using aggregated consumer reviews it had collected and amalgamated from the sites of certain online retailers that sell upright vacuum cleaners – and specifically the answers that consumers gave when asked if they would recommend a particular product under review. The percentage of recommendations for various similar vacuum cleaner brands was then tallied and compared.
The case considered the following:
1. What did the “most recommended” claim really mean?
Euro-Pro’s position was that the claim was not comparative and only relayed to consumers a simple factual statement that Shark is “America’s most recommended Brand” based upon percentages of consumer reviews for upright vacuums on major national retailers’ websites.
Dyson counter argued that the claim was in fact comparative and implied that Shark was the most recommended and preferred vacuum over other brands.
On this point the NAD concurred with Euro-Pro, finding that the “most recommended claim” conveyed the message that Shark was the most recommended, and not necessarily preferred, brand of vacuum by owners of vacuum cleaners in the US.
2. Were aggregated online consumer reviews sufficiently reliable to serve as substantiation for the claim?
Dyson argued that the data was unreliable as Euro-Pro could not provide any evidence that the largely anonymous population of online reviewers (1) actually bought and used the product, (2) were American customers, (3) based their recommendations on actual experience with or use of the product, or (4) represented a demographically representative data set by age, region, gender, or income.
Euro-Pro attempted to defend these criticisms by pointing to the fact that online reviews have become an important and established influence in many consumers’ buying decisions such that they now provide a new, reliable way to discern consumer opinions.
Whilst NAD acknowledged that consumers are increasingly contributing and using online reviews to make purchasing decisions, it cautioned that advertisers must still adhere to the NAD’s standards of “truthfulness, reliability and representativeness” when using technology and information to support advertising claims.
It also found that whilst 10,000 self- reported consumer reviews was a statistically significant sample, the evidence was still, as Dyson argued, insufficiently reliable or robust to provide a reasonable basis for the claims: the consumer reviews still lacked scientific integrity, were unverified and not demographically representative.
Specifically, they found that the web sites from which Euro-Pro sourced its data varied in how they worded their recommendation questions and had different policies for how long reviews remained available on the site. Moreover, because the majority of vacuum cleaner sales do not occur online, but rather in bricks-and-mortar stores, the NAD felt that the online reviews could not be representative of all of America.
NAD also emphasised that there is a distinction to be drawn between the reliability of online reviews for consumers who directly read and analyse them when considering which product to purchase and their reliability as the basis of broad advertising claims supposedly reflecting the opinions of a wide swath of US consumers.
Based on their concerns and the evidence presented, NAD found that Euro-Pro’s evidence was insufficiently reliable to support its “most recommended claim. Euro-Pro is appealing the decision.
Why this matters:
The case shows that consumer reviews that are aggregated from many online sources will not be sufficient to substantiate any “most recommended” advertising claim in the US. Advertising using crowd sourced or aggregated data collected across multiple platforms to support claims should be approached and carried out with caution as such data will need to pass muster under NAD’s strict and evolving standards of truthfulness, reliability and representativeness.
Organisation should therefore ensure that any advertising claims made in the US have sufficient substantiation, in accordance with such legal principles.
Would the UK’s equivalent regulatory body, the Advertising Standards Authority, have come to a similar conclusion on the same claim and supposed substantiation? Given the ASA’s similarly rigorous approach it is difficult to believe there would have been a significantly different result.
