ADventures in Law

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Like lots of folks, I went through my obsession with Peloton during the pandemic. And I fell hard for Cody Rigby, whom I never could hate even when I wanted to because I was biking to Britney Spears and laughing while doing it. So seeing that Unilever had hired him as an influencer to kick off the <a href="https://www.tiktok.com/@cody_rigsby/video/7065773537126059311">Degree Advanced Gray T-shirt challenge on TikTok</a> already made me dig the brand. In addition to the challenge, Degree ran an <a href="https://www.ispot.tv/ad/16Py/degree-deodorants-t-shirt-challenge-samuel">ad campaign</a> with a head-to-head gray T-shirt challenge comparing Degree Advanced to Old Spice. At the end of lots of pull-ups (#goals – I can’t do one), there was no sweat on the gray T-shirt from the Degree armpit but visible sweat from the Old Spice armpit. A head-to-head pit stains demo is going to have competitors seeing red so it was no surprise this <a href="https://bbbprograms.org/media-center/dd/unilever-degree-advanced" target="_blank" rel="noreferrer noopener">ended up at NAD</a>.

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Now, P&amp;G didn’t take issue in this challenge with the claims for the dry spray that Degree Advanced did provide better sweat protection for longer than Old Spice. But they took issue with the demonstration showing no visible sweat from Degree at all, the comparative demo and an implied claim that the entire Degree line provided superior performance. P&amp;G argued that this overstated the level of testing Unilever had completed. NAD decided the ads and sponsored influencer posts conveyed the message that Degree Advanced would prevent underarm sweat and sweat marks, including during intense exercise.

Unilever had industry-accepted hot room testing in which participants are inactive in a room with a high temperature, after which participants place in their armpits absorbent pads that are then weighed to test for sweat levels. Unilever also looked to a recognized test to measure sweating during activity; however, as the participants were connected to machines during the test, this limited which activities they could do. Unilever worked with experts to amend this test with special sensors to replicate sweating during more intense exercise and tested head-to-head the Degree Advanced and Old Spice dry spray products.

Sounds like a lot of testing, so Unilever was probably feeling cool and dry heading into NAD. But NAD rejected this body of testing as unreliable to support the claims being conveyed. Why? Two core (pun intended) reasons: (1) Both series of studies showed that participants did sweat while wearing Degree Advanced (albeit less than when using the competing test products) and (2) none of the studies tested for underarm sweat marks. Unilever argued that the amount of sweat detected would not translate into a noticeable amount of sweat on a loose (not compression) T-shirt. NAD determined that it needed testing that correlated the sweat observed in testing results with a lack of visible sweat marks on a gray T-shirt. Therefore, NAD recommended Unilever discontinue claims saying or implying that Degree Advanced eliminated sweat marks during a vigorous workout. There is often lots of talk about whether there is a good fit or match between the substantiation and the claims, but this case really highlights just how important that exercise is, including in cases where you have what looks like the gold standard of multiple third-party high-quality controlled head-to-head tests.

The case is also instructive on product vs. line claims. NAD over the years has given guidance on how to limit a claim to a particular product and not make an overly broad line claim. In the video ad, the athlete is shown applying dry spray and the written disclaimer text refers to the comparative being to dry spray. NAD went on to say that there were numerous audio references to the larger brand, Degree Advanced. The setup to the ad said, “Let’s put Degree Advanced and Old Spice to the test and see if I get any sweat marks.” NAD has generally said, “In assessing whether a line claim is communicated by an advertisement, NAD looks at a variety of factors, among which include whether there are general brand references in the advertisement, whether the copy effectively limits the applicability of the claim if only one variety of the product is shown, and if there is a beauty shot of the products that may serve to reinforce the extended applicability of the claims.” The lesson from this case suggests that a disclaimer and showing only the specific product of comparison may not be enough if there are audio callouts of the brand generally. That seems to be taking a harder line on what may constitute a line claim than we have seen from NAD in other cases, and it is something to watch.

Matching Your Demo to Your Real-Life Testing Proves to Be a Rough Workout at NAD