ADventures in Law

Home | ADventures in Law

Touting your product or brand as number one has always been popular. It tells the world enough customers think highly of you to choose you more often over all others. Being number one also seems like a fairly straightforward claim to support. After all, this is math, and there can only be one top dog. But not so fast. In claim support, nothing is easy, and there are always shades of gray. But <a href="https://bbbprograms.org/media-center/dd/sharkninja">NAD recently gave us some clarity</a> on the rules of the road for a “number one” claim.&nbsp;

core/paragraph

Shark claimed it was “America’s #1 Floorcare Brand.” And it is, or was, according to dollar sales at the end of 2022 tracked by a reputable third-party source, which Shark disclosed in a disclaimer. Bissell challenged Shark in a SWIFT challenge asserting that it has the number one brand based on unit sales and the disclaimer did not go far enough to make this distinction clear. Bissell argued that you shouldn’t get to be number one just because your products are more expensive. You should be number one based on unit sales because this is an apples-to-apples comparison for calculating market share. Using unit data has always been the preferred way to measure such a claim (with bonus points if your brand is tops in both units and dollars), but the conventional wisdom, and thus general practice, was to allow a claim based on dollar sales as long as that fact is clearly and conspicuously disclosed in a simple disclaimer.&nbsp;

Bissell argued that it was the leader by a long shot — selling 4 million more units than Shark — and that reasonable consumers would understand a number one claim to be based on the number of goods sold. In other words, the disclaimer here contradicted rather than clarified the claim. In this instance, NAD agreed and said Shark should modify the claim itself to say, “#1 based on dollar sales.” NAD said that part of the reason for this decision was the significant lead Bissell had over Shark in units sold. This begs the question of whether a best-selling claim based on dollars but not unit sales can be supported with a disclosure when the competition is more of the neck-and-neck variety.

While Bissell’s apples-to-apples argument is logically compelling, what if the Shark products not only were more expensive but also lasted longer, such that a buyer did not need to replace their upright or hand vac as frequently? Such a phenomenon might suggest dollars are indeed the more accurate way to tell customer preference. But in any event, this case comports with NAD’s (and the FTC’s) growing focus on drafting a clearer, more nuanced claim rather than relegating key information needed to contextualize the claim to the fine print.&nbsp;

Other areas where advertisers can get tripped up include the need to continually refresh the substantiation. If your brand was number one in 2022 but got overtaken in 2023, the claim likely needs to be discontinued. There are also questions about the right universe being included to support a broad line claim that your brand is the best-selling brand. But the lesson to suck up from the vacuum case is this one: Before promoting yourself as number one or best-selling, make sure you get to this honor based on individual unit sales, not on dollars.

Supporting “We’re Number One” — NAD Clarifies the Rules for Number One Claims