“Compare To” Claims – NAD Holds that Competing Products With Different Levels of Clinical Support are Not Truly Comparable
Grammar guides advise that “compare to” is the proper formulation when two things are similar — as in “Shall I compare thee to a summer’s day” — whereas “compare with” should be used to point out dissimilarity or contrast. In the legal context, both NAD and the federal courts have grappled with the use of “Compare to” on product labeling, often by generic product companies that market products intended to compete with a brand name seller at a lesser price.
NAD recently had occasion to rule on the issue in Lang Pharma Nutrition Inc. (Case #5881 Sept. 2, 2015) involving the use of “compare to” labeling on Lang’s CVS-brand Hair Nourishing Dietary Supplement. The challenger, Lifes2Good, LLC, manufactured a competing product sold under the brand name Viviscal. Lifes2Good argued that: (1) Lang’s “compare to” labeling was not a mere “invitation to compare” competing products but rather conveyed comparative performance claims for hair nourishment and growth; (2) the ingredient studies on which Lang relied to substantiate its performance claims were insufficient; and (3) the comparative performance claims communicated by Lang’s labeling and advertising was unsubstantiated in light of the fact that Viviscal had been the subject of twelve clinical studies, whereas Lang’s CVS store brand supplement had not been clinically tested at all.
Following existing NAD precedent, NAD found that Lang’s placement of the words “compare to Viviscal” on product packaging was sufficiently separated from the other performance claims on the packaging, such that the “compare to” representation, “in and of itself” did not give rise to an implied parity hair growth claim. However, NAD agreed with the Lifes2Good that consumers would have insufficient information to make an informed comparison between the two products even if consumers looked at the Supplement Facts on each package. In particular, consumers would have no way of knowing, just by comparing the packages, that Viviscal had been clinically tested for efficacy multiple times, while the CVS-branded product had not. Thus a “reasonable consumer could take away the message that the CVS and Viviscal brands are similar in type, composition and efficacy, a message not supported by any evidence in the record.”
Regarding the sufficiency of Lang’s ingredient studies, NAD noted that “the FDA, FTC and previous NAD decisions are in accord that animal, in vitro and study abstracts are generally insufficient to support health-related claims.” Moreover, the results of any ingredient studies submitted must be capable of extrapolation to the population at large, rather than based on individuals with pre-existing diseases or health conditions. After examining the evidence presented by Lang, NAD concluded that Lang had failed to meet its burden of establishing that its marketed products had the same ingredients, in the same dosage formulation and route of administration as the underlying ingredient studies on which Lang relied to support its health claims and that its study results could be applied to the population at large.
The decision in Lang is notable in that NAD expressly found that the presence or absence of clinical research support for a product is a material difference that could render two competing products not truly comparable. In addition, if the consumer is not in a position to understand significant differentiating factors between two competing products simply by picking them up and comparing packaging and labeling, then a “compare to” claim may be found misleading unless adequate substantiation exists to justify the invited comparison.