As Attorney Pooja Nair, partner at Ervin Cohen & Jessup LLP pointed out, The NAD’s standard for advertising focused on what the reasonable consumer would take away from the claims made in the apple cider vinegar gummies. “Specifically, claims that ‘Vitamin B12 to support energy production’ could be construed by the reasonable consumer to suggest that consuming the product would make them feel more energized, even though the evidence presented was about cellular energy.”
Goli's ACV Gummies contain 500 mg of ACV (5% acetic acid), as well as 200 mcg DFE of vitamin B9 (120 mcg folic acid), 1.2 mcg of vitamin B12 and other ingredients.
Despite disagreeing with findings, Goli ultimately agreed to comply with the NAD’s decision.
“The proof for your advertising claims must be a good ‘fit.’ You can’t just go for the shotgun approach, find a half dozen somewhat relevant studies, and hope some of them might stick to support your product claims,” explained Attorney Anuj Desai, partner at Arnall Golden Gregory LLP. “While the NAD decision focuses on this upfront, many companies miss this point—it is always a risky proposition to claim that your product performs in a certain way when all you are relying on is the fact that there is a study that says a product ingredient performs a certain way. FTC (and NAD) will always look to how a reasonable consumer might perceive your claims. If you say your product can elevate your immune response, they will assume you have a study (or studies) done on your product establishing this fact.”
Skin health claims
The recommendations didn’t stop there—NAD also advised that Goli discontinue the following skin health claims:
- "Folic acid supports skin health"
- "B9 supports healthy skin"
- "Folic acid for healthy skin"
These claims were challenged by Pharmavite LLC, maker of Nature Made brand dietary supplements. The competing manufacturer also cited a laundry list of other claims on the advertiser's website, social media, and in videos promoting the various health benefits of its ACV gummies, including weight loss, appetite control, heart health, increased energy, improved skin health, healthy digestion, improved immune function, reduced bloating, reduced cravings, reduced indigestion, and detoxification. Some of these claims are tied to apple cider vinegar or specific ingredients, but most are attributed to the entire product.
To bolster its modified skin health claims, Goli relied on a National Institutes of Health Folate Fact Sheet, and two articles, neither of which addressed the benefit of folic acid supplementation on skin health. Based on this evidence, NAD determined that the advertiser had not substantiated its skin health claims and recommended that they be discontinued.
Beyond the pack
Desai said one key takeaway from this case is that companies often forget that the product label and box are not the only places they are making claims about their product. “They also do that on social media. On YouTube. Snapchat. And through paid endorsements and testimonials. As this decision shows, all of that is looked at when a government agency, NAD, or a competitor is evaluating what you are claiming about your product. Companies have to carefully control, vet, and monitor the entire ecosystem of their product branding and messaging.”
During the proceeding, the advertiser agreed to permanently discontinue all claims at issue, except for those relating to heart health, energy, skin health, and immune function. These remaining claims were modified, after which the challenger only objected to the vitamin B12 claim and skin health claims. NAD did not review the discontinued or unchallenged modified claims on their merits.
Respect the decision
Goli did not respond to NutraIngredients-USA's request for comment, however, in its advertiser statement, Goli stated that it will comply with the NAD's decision. Although the advertiser noted that it disagreed with NAD's findings regarding the role of folic acid in skin health and the message conveyed by its B12 claim, the company stated that it "respects the self-regulatory process and appreciates the NAD's careful attention to this matter."
“There are situations where a brand might have good reason to oppose a recommendation or not follow it, but companies familiar with the process know that where a recommendation is not followed, NAD refers the matter to FTC, which is more likely than not to bring its own investigation.” Desai said.
Self regulation
Nair said that NAD handles about 150 advertising disputes each year and provides a more streamlined approach, especially considering all the time and money spent on cases that go through the legal system.
“NAD proceedings offer a self-regulation forum for businesses through the Better Business Bureau. The NAD process is very different from the other methods for competitors to challenge advertising claims, which include filing a lawsuit or filing a complaint with the Federal Trade Commission. NAD decisions do not have a long discovery process and can be resolved quickly,” explained Nair.
Desai said that if companies are willing to take the time and money, a competitor might go a step further and file suit to enjoin deceptive advertising and unfair competition using the federal Lanham Act and related state law provisions.
However one decides to go about challenging health claims, Desai said it’s not necessarily government agencies keeping tabs.
“While FTC [and FDA] may be understaffed such that they can’t go after everyone making deceptive claims about their products, companies should realize that their competitors are keeping a watchful eye on the marketplace,” cautioned Desai.
