2017 Advertising Claims Support: Case Histories and Principles

The Greenbrier
White Sulphur Springs, WV
April 18-20, 2017

Advertising Claims Support: Case Histories and Principles
(April 18-20)

Fee includes:
  • Continental breakfasts, breaks, lunches
  • Group dinners
  • Course manual
  • A copy of our latest books:

    - Readings in Advertising Claims Substantiation
    - Tools and Applications of Sensory and Consumer Science
    - Thurstonian Models: Categorical Decision Making in the Presence of Noise

20% discount for each additional registrant from same organization.

The Institute for Perception offers reduced or waived course fees to non-profit entities, students, judges, government employees and others. Please contact us for more information.

This course is recommended for attorneys specializing in advertising law, market research managers, product developers, in-house counsel, sensory and consumer scientists, and packaging/product testing specialists. The instructors will be:

Advertising Claims Support: Case Histories and Principles

Comparative advertising can improve sales, but how do you address false claims or challenges made by your competitors? Claims support is a critical business focus for many companies in categories with aggressive competitors. There is a scientific and legal foundation necessary to support advertising claims.

The purpose of this course is to raise awareness of the issues involved in surveys and product tests to provide the type of evidentiary support needed in the event of a claims dispute.

The course speakers have decades of experience as instructors, scientific experts, jurors, and litigators in addressing claims with significant survey and product testing components. National Advertising Division® (NAD®) and litigated cases will be used to examine and reinforce the information discussed.

The topics covered follow. For more details, please see the course brochure and do not hesitate to contact us with any questions. Register online using our registration form where payment may be made by credit card. If you qualify for a fee discount, or would like information about payment by invoice, please contact Susan Longest at mail@ifpress.com or call 804-675-2980 before registering. Enrollment is limited.

Note: Approximately 18 credits will be sought for registrants in jurisdictions with CLE requirements. This program also qualifies for Certified Food Scientist contact hours (CH). CFS Certificants may claim 18 CH for their attendance.

Tuesday, April 18 (8am - 4pm)

8:00 - 9:00 Introduction

  • Introduction and scope of the course
  • Claims support in product/brand development
  • Three main areas where surveys are used
  • History of surveys in litigation: Hearsay objections
  • Admissibility of expert testimony
  • Surveys in false advertising and trademark cases
  • Daubert effects and federal rules of evidence - Rule 703

9:10 - 10:00 Claims

  • A typical false advertising lawsuit
  • Puffery, falsity, and injury with examples: P&G vs. Kimberly-Clark (2008), Shick vs. Gillette (2005), P&G vs. Ultreo, SDNY (2008)
  • To sue, challenge, or negotiate - an internal counsel’s perspective
  • FTC and state consumer enforcement authority

10:10 - Noon NAD Mock Hearing; Overview of the NAD

  • NAD mock hearing
  • Motivating Case: 3D TV
    1) NAD Case #5416 (2012) LG Electronics USA, Inc. (Cinema 3D TV & 3D Glasses)
  • Advertising self-regulation and the NAD process
  • Preparing for an NAD hearing

1:00 - 2:00 ASTM Claims Guide; Methods and Data

  • Review of the ASTM Claims Guide: Choosing a target population, product selection, sampling and handling, selection of markets
  • Claims: Superiority, unsurpassed, equivalence, non-comparative
  • Methods: Threshold, discrimination, descriptive, hedonic
  • Data: Counts, ranking, rating scales

2:10 - 3:00 Sensory Intensity and Preference; Attribute Interdependence

  • Sensory intensity
  • Liking and preference and how they differ from intensity
  • Attribute interdependencies
    2) NAD Case #4385 (2005) Bausch & Lomb, Inc. (ReNu with MoistureLoc)
  • 3) NAD Case #4364 (2005) Playtex Products, Inc. (Playtex Beyond Tampons)

3:10 - 4:00 Requirements for a Sound Methodology

  • Probability and non-probability sampling
  • Internet surveys
  • The AAPOR report (American Association for Public Opinion Research)
  • Psychometric properties of the survey items
  • Reliability
  • Validity: Ecological, external, internal, face, construct
  • Bias: Code, position
  • Task instructions – importance and impact

Wednesday, April 19 (8am - 4pm)

8:00 - 9:00 Consumer Relevance

  • Setting action standards for consumer-perceived differences
  • Linking expert and consumer data
  • Clinical vs. statistical significance
  • Consumer relevance in litigation
    Litigated Case: SC Johnson vs. Clorox – Goldfish in Bags, 241 F.3d 232 (2nd Cir. 2001)
    4) NAD Case #5197 (2010) Unilever US (Dove® Beauty Bar)
    5) NAD Case #5819 (2015) Unilever US (Degree MotionSense and Degree Clinical Protection Antiperspirants)

9:10 - 10:00 Test Method, Design, Location, and Participants

  • Test options: Monadic, sequential, direct comparisons
  • Test design issues: Within-subject, matched samples, position and sequential effects, replication
  • Choosing a testing location and defining test subjects
    6) NAD Case #5049 (2009) The Procter & Gamble Co. (Clairol Balsam Lasting Color)
    7) NAD Case #5425 (2015) (2012) Church & Dwight Co., Inc. (Arm & Hammer® Sensitive Skin Plus Scent)
  • 8) NARB Panel #101 (NAD Case #3506)(1999) American Express vs. Visa

10:10 - 11:00 The Science of Answering Questions

  • Answering questions
  • Purpose of conducting surveys: Events and behaviors, attitudes and beliefs, subjective experiences
  • How respondents answer questions: Optimizing and satisficing
  • Filters to avoid acquiescence and no opinion responses
  • Survey questions: Biased, open-ended vs. closed-ended
  • Predicting primacy and recency effects
  • Motivations to optimize
  • Steps to improve survey questions

11:10 - Noon Examples of Consumer Takeaway Surveys

  • Dropped cell phone call survey in Canada: Canadian Government vs. Rogers Communications
    9) NAD Case #4305 (2005) The Gillette Co. (Venus Divine® Shaving System for Women)
    10) NAD Case #5849 (2015) T-Mobile USA (More Data Capacity)

1:00 - 2:00 Design and Analysis of a Consumer Takeaway Survey

  • The advertisement at issue
  • Defining the target population
  • Designing survey questions: Open vs. closed ends, full vs. quasi-filters, order of questions
  • Selection of a control
  • Data analysis and interpretation

2:10 - 3:00 Analysis - Interpretation and Communication

  • Hypothesis testing
  • Common statistical analyses
  • Determining statistical significance and confidence bounds
  • The value of statistical inference in claims support
  • Communicating claim requirements to the business side
    11) NAD Case #4906 (2008) Bayer vs. Summit VetPharm (Vectra 3D and Vectra)
    12) NAD Case #5090 and NARB Panel #157 (2009) Bayer vs. Summit VetPharm (Vectra 3D and Vectra)
    13) NAD Case #5569 (2013) InterHealth Nutraceuticals (Zychrome Dietary Supplement)
    14) NAD Case #5755 (2014) The Procter & Gamble Co. (Olay Sensitive Body Wash)
    15) NAD Case #5695 (2014) Sergeant’s Pet Care Products (Sentry® Fiproguard)
    Litigated Case: Avon Products vs. S.C. Johnson & Son, Inc. (S.D.N.Y. 1994)

3:10 - 4:00 Test Power

  • The meaning of power
  • Planning experiments and reducing cost
  • Sample sizes for claims support tests
  • Managing Risks: Advertiser claim, competitor challenge
    16) NAD Case #4248 (2004) McNeil, PPC, Inc. (Tylenol Arthritis Pain)

Thursday, April 20 (8am - 3pm)

8:00 - 9:00 What to Do with No Difference/No Preference Responses

  • No preference option analysis
  • Power comparisons: Dropping, equal and proportional distribution
  • Statistical models and psychological models
  • ASTM recommendation
    17) NAD Case #4270 (2004) Frito-Lay, Inc. (Lay’s Stax® Original Potato Crisps)
    18) NAD Case #5453 (2012) Ocean Spray Cranberries, Inc. (Ocean Spray Cranberry Juice)

9:10 - 10:00 Testing for Equivalence and Unsurpassed Claims

  • How the equivalence hypothesis differs from difference testing
  • ASTM requirements for an unsurpassed claim
  • The paradox of finding support for superiority, unsurpassed, and equivalence; the need for a minimum standard for superiority
  • FDA method for qualifying generic drugs: The TOST
  • Improved methods over TOST for testing equivalence
    19) NAD Case #5490 (2012) Colgate-Palmolive Co. (Colgate Optic White Toothpaste)

10:10 - 11:00 Ratio, Multiplicative, and Count-Based Claims

  • The difference between ratio and multiplicative claims; Examples
  • Why ratio claims are often exaggerated
  • Count-based claims (e.g.,“9 out of 10 women found our product reduces wrinkles”)
    20) NAD Case #5107 (2009) Ciba Vision Corp. (Dailies Aqua Comfort Plus)
    21) NAD Case #5416 (2012) LG Electronics USA, Inc. (Cinema 3D TV & 3D Glasses)
    22) NAD Case #5484 (2012) Reynolds Consumer Products (Hefty® Slider Bags)
    23) NAD Case #5779 (2014) SC Johnson (Scrubbing Bubbles® Heavy Duty Cleaner with fantastik® & Scrubbing Bubbles® Bleach 5-in-1 All Purpose Cleaner with fantastic® )

11:10 - Noon “Up To” Claims

  • Definition and support for an “up to” claim
  • FTC opinion with litigated case example
  • Issues in applying the FTC rule
    24) NAD Case #5263 (2010) Reebok International, LTD (EasyTone Women’s Footwear)
    25) NAD Case #5876 (2015) The Procter & Gamble Co. (Duracell Coppertop & Duracell Quantum Alkaline Batteries)

1:00 - 3:00 Applying Course Principles and Concepts

  • Group exercise: Develop support strategy for an advertising claim to include: engagement of all stakeholders, wording of the claim, takeaway, design and execution of a national product test, product procurement, analysis, and report
  • Course summary and conclusion

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