Thank you,
Howard Bell
Chair, NARB

Carla Michelotti, Executive Vice President, General Counsel of Leo Burnett Worldwide, Inc, was more than the "host"--she delivered a terrific keynote opening speech that provided a very comprehensive update on the status of advertising regulation and self-regulation around the world, with special attention to food advertising to kids. She warned of an "increasing global hostility toward kids' advertising".

Following a review of the previous year's NAD cases by Andrea Levine, Director of NAD, and Martin Zwerling, Assistant Director of NAD, Mark McGowan,Vice President, Legal of Pepsico Beverage and Food Division, expanded on the discussion about food advertising as it relates to the domestic environment. And, Ross Weisman, Partner at Kirkland & Ellis who had represented many prominent advertising clients endorsed the benefits of using the NAD system.

Bruce Hopewell, Director of NARB, then described the appeals process and how to navigate a case through it. He also highlighted the volunteer members from advertisers, agencies and the public sector.

David Mallen and Wayne Keeley, both Assistant Directors of NAD, conducted a "mock trial" which successfully involved and entertained the audience of 70 with a case that revolved around the truth and accuracy in claims for a hypothetical lizard food. It was complete with mock print ads and mock videos of claims substantiation.

Mary Engle, Associate Director of the Division of Advertising Practices, Federal Trade Commission (FTC) spoke at lunch about the FTC's position on the issue of advertising to kids, reiterating Chairman Majoras' comments that the upcoming FTC/HHS workshop was not "the first step toward increased regulation". She referenced the real estate analogy of the key to success as "location, location, location" and said for the advertising industry it is "self-regulation, self-regulation, self-regulation".

Advertising Week in NYC
NARC will host NAD Annual Conference during Advertising Week 2005. The two day event titled, What's New in Comparative Advertising and Claims Support will take place September 26-27, at the W Hotel New York. Check www.narcpartners.org soon for more details.

In response to the challenge, eDiets voluntarily modified or discontinued certain weight loss and quantified body shaping claims. NAD's decision recommended modifications to additional claims. Several claims made on the eDiets website, including the claim "LOSE 10 LBS IN FIVE WEEKS," were found by NAD to be substantiated.

The only issue before this panel is the appeal by Weight Watchers of NAD's determination that the claim "LOSE 10 LBS IN FIVE WEEKS" was substantiated

Decision: The panel affirmed NAD's decision that the advertiser's claim "LOSE 10 LBS IN FIVE WEEKS" was substantiated by competent and reliable scientific evidence.

The following members served on NARB Panel #122:

• John Kamp (Chair), Partner, Wiley, Rein & Fielding
• Mollie Lawrence, Director, Advertising Services, Bayer Corporation
• Don Hamblen, Vice President, Payless ShoeSource
• Theresa Junkunc, Marketing Manager, Ford Motor Company

NARB Panel #125
Background: This case arose from a challenge filed by Mead Johnson concerning print, television and Internet advertising for Nestlé's Good Start Supreme infant formula.

NAD found that Nestlé could continue to make claims regarding the benefits of DHA and ARA supplementation in Good Start Supreme as long as the advertising clearly conveys that the claimed benefits are supported in the scientific community, and not proven on testing of Good Start formula, and as long as the advertising does not convey the message that Good Start is the only formula supplemented with DHA and ARA. Nestlé did not appeal these findings.

Decision: The panel affirmed NAD's findings, and recommended that Nestlé (1) cease making claims about specific DHA and ARA levels in its formulas in the absence of any comparative testing adequately substantiating that lower levels of DHA and ARA do not work as well in providing support to visual or brain development in infants; (2) cease making any express or implied claims that Good Start Supreme is easier to digest than competing formulas, or that Good Start Supreme provides infants with greater comfort throughout the digestive process; (3) cease using the "two beaker" depiction in its advertising; and (4) cease making any comparisons to breast milk that are not clearly compositional, including express or implied claims that Good Start Supreme is digested in a manner similar to breast milk.

The following members served on NARB Panel #125:

• Chris Pulleyn (Chair), CEO & Chair, Buck & Pulleyn, Inc.
• Phyllis Woolley-Roy, Director Consumer Brands, AstraZeneca USA
• John Simone, Director, Marketing, Colgate-Palmolive Company
• Bruce Horner, Director Global Advertising, Nortel Network
• Dr. Jan LeBlanc Wicks, Associate Professor, University of Arkansas

I didn't know there was such a thing as a 6" diameter ring binder until I served on a panel for the National Advertising Review Board. That's how much it takes to hold all the documentation for a typical NARB case, especially one in which health claims are at issue. The case investigated by NARB Panel #125 regarding print, television, and Internet advertising for Nestlé's Good Start Supreme infant formula was no exception.

The challenger in this case, Mead Johnson, had successfully convinced the National Advertising Division (NAD) of the Council of Better Business Bureaus that Nestlé was making various unwarranted claims about Good Start Supreme, including implications that the formula had higher levels of certain nutrients, that it was easier to digest than competing formulas, and that it performs (i.e. is digested) similarly to breast milk. In addition, the NAD agreed with Mead Johnson that a side-by-side visual comparison of Good Start Supreme with "another leading formula" was unnecessarily nauseating and would lead consumers to believe that competing formulas were indigestible.

Nestlé didn't agree with these findings, and the job of Panel #125 was to review the background materials, hear the attorneys from Nestlé, Mead Johnson, and the NAD summarize their views, and make a decision for or against the NAD findings. In this case, the 6" ring binder was chock-a-block with legal briefs in addition to voluminous research studies regarding the chemical composition and digestibility of breast milk and various infant formulas.

As Bruce Hopewell, Director of NARB, was giving me a heads-up on the case, he mentioned that infant formula is one of the most-contested product categories. It's easy to see why. The merits of one formula over another - and formulas as compared to breast milk - are highly charged issues since they literally shape the development of the youngest consumers of all. Some of the research studies in our case, for instance, focused on the infant's developing eyesight. These are high-stakes issues, and the competitors in the market are in a continual process of putting each other's advertising claims under a microscope.

In preparation for the case I distilled the contents of the ring binder into a three-page matrix, comparing the arguments and counter-arguments of Mead Johnson, Nestle, and the NAD on each point. This was the only way I could make sense of the stupefying level of detail. As we listened to the two companies' expert witnesses during the hearing, we learned more than we probably ever wanted to know about the infant digestive tract, casein, curds and whey, and, by way of an amusing digression, cheese-making. What we didn't learn, however, in either the advance materials or the oral presentations, was the answer to perhaps the most important question of all: what was the consumer perception of the advertising? It was left to us, the NARB panel, to figure this out. We had to make our best guess about "the consumer takeaway" in the absence of any concrete evidence.

This is not uncommon in NARB cases. In this one, it would have been a critical piece of evidence. While the attorneys in the case focused on parsing the headlines, subheads, and copy, sometimes reducing them almost to the level of "what the meaning of 'is' is," it was up to the panel to ponder the consumer reactions to the words as well as to the now-notorious side-by-side comparison shot.

In the end, we unanimously upheld the NAD decision. As always, I was impressed with the high level of discussion and the thorough preparation that was evidenced by all the participants, including the competing companies, the NAD, and my fellow panel members. However, I can't help but feel that a great deal of the complexity of this case could have been stripped away if either the challenger or the defender had conducted a consumer perception study to bolster its claims. At the end of the day, that's what the panel has to judge - not only the truth and merit of the advertiser's claim, but how it is perceived by the consumer.

If you are interested in contributing to the Member's Corner please contact Bruce Hopewell at 212-705-0114 or email bhopewell@narb.bbb.org