Diaper Advertising Challenge Addresses Some Basics of Ad Law: “Up To” Claims, Superiority Claims Versus Unnamed “Leading Brand,” and Influencer Disclosure Obligations

The National Advertising Division (“NAD”) issued a new decision addressing a number of basic advertising law staples: “up to” claims, comparative superiority claims, and apples-and-oranges comparisons.

Coterie Baby Inc. (“Coterie”) makes premium diapers and advertised that its diapers provided “Up To 4x Absorbency Compared to Leading Brands” and “Up To 3x Drier Skin Compared to Leading Brands.” The Procter & Gamble Company (“P&G”), manufacturer of Pampers diapers and one of those “leading brands,” challenged Coterie’s claims.

The NAD reviewed testing by both Coterie and Pampers and ultimately found that, although the testing methodologies used by both were similar, the end results varied significantly, with the NAD finding P&G’s tests more reliable. Coterie measured absorption rate and