The National Advertising Division has reaffirmed that unit sales remain the preferred measure for substantiating “#1” selling claims, siding with Force Factor in a challenge brought by rival beet supplement brand Human Power of N Company (Humann).
The decision leaves intact an established advertising standard at a time when the National Advertising Division (NAD) has revisited aspects of claim substantiation for dietary supplements, according to Jennifer Adams, partner at Amin Wasserman Gurnani.
“NAD has issued some precedent shifting decisions lately for dietary supplements, but for #1 claims the substantiation requirements remain the same,” Adams told NutraIngredients.
Human Power of N Company, which markets the Humann brand, challenged Force Factor’s claims that Total Beets is “America’s #1 Best-Selling Beets Brand,” the “#1 Best Selling Beets Brand in America” and the “#1 Beets Brand in America.”
The challenge was brought through NAD’s Fast-Track SWIFT process, an expedited review for single-issue advertising disputes.
What counts as ‘#1’?
At the center of the dispute was not whether the companies could produce sales data but which sales measure should determine category leadership.
As detailed in NAD’s case decision, Humann argued that dollar sales were the appropriate metric and that its brand led on that basis. Force Factor maintained that unit sales better reflected the message consumers would take from a “#1” claim and submitted sales data showing its lead by that measure.
NAD agreed with Force Factor, concluding that consumers generally understand such claims to mean a product is purchased more frequently than competitors. It found that “the record did not demonstrate that differences in product form, size, or pricing made unit sales an unreliable measure in this case,” the release stated.
“This is an interesting challenge, as NAD has well-established precedent that unit sales, not dollar sales, are the preferred metric for #1 selling claims,” Adams said.
“Human Power of N had a tall order arguing NAD should contradict its own precedent, and ultimately NAD declined to do so,” she added.
Adams noted that NAD has turned to dollar sales when unit sales distort the comparison. That exception did not apply here, she said, pointing to Force Factor’s analysis indicating Humann products were more expensive on a 30-day supply basis.
“Price discrepancies is one of the reasons NAD looks to unit sales in the first place,” she added.
Qualification required
NAD therefore found Force Factor had substantiation for all three challenged claims based on current total unit sales data.
It did, however, recommend modifying the more general “#1 Beets Brand in America” claim to disclose that the ranking is based on total unit sales.
Force Factor stated in the proceeding that it “will comply with NAD’s recommendation.”
NutraIngredients contacted Force Factor and Humann for additional comment but did not receive responses as of publication.
