NARB PANEL #222. Appeal of the NAD Final Decision Regarding Advertising for Phillips Oral Healthcare LLC s Philips Sonicare FlexCare Platinum

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1 NARB PANEL #222 Appeal of the NAD Final Decision Regarding Advertising for Phillips Oral Healthcare LLC s Philips Sonicare FlexCare Platinum Panel Members Scott Hamula (Chair) Associate Professor and Chair Strategic Communications Ithaca College Faruk Capan Chief Executive Officer Intouch Solutions, Inc. Manos Spanos Vice President, Brand Marketing PepsiCo, Inc. Darlene Abubakar Senior Director, Naitonal Advertising and Marketing Programs Amtrak-National Railroad Passenger Corp. Representing the National Advertising Review Board Alan Cohen, Vice Chair Saveeta Dhanai, Coordinator Representing the Advertising Self-Regulatory Council Lee Peeler, President Representing the National Advertising Division Laura Brett, Director Martin Zwerling, Deputy Director Representing Philips Oral Healthcare, LLC Lynne Bezikos LeBlanc, Senior Counsel Michael H. Steinberg, Sullivan & Cromwell LLP Lauren M. Cruz, Sullivan & Cromwell LLP Representing The Procter & Gamble Company Kenneth Blackburn, Associate General Counsel Adam Heider, Counsel Svetlana Farrell, DDS, Ph.D., Section Head, Global Oral Care Clinical Operations Amanda Heffernan, Principal Scientist Nancy J. Felsten, Davis Wright Tremaine LLP Joanna Summerscales, Davis Wright Tremaine LLP

2 REPORT OF NARB PANEL 222 Decision Issued: December 1, 2017 Appeal of NAD Final Decision Regarding Claims by Philips Oral Healthcare LLC for Sonicare Electric Toothbrushes Background Claims made by Philips Oral Healthcare LLC ( Philips ) for its Sonicare electric toothbrushes were challenged by The Procter & Gamble Company ( P&G ), maker of competing Oral-B electric toothbrushes. The challenged claims were made in two television commercials and include the following: Compared to Oral-B 7000, Philips Sonicare FlexCare Platinum removes significantly more plaque. Removes significantly more plaque* versus Oral-B *Philips Sonicare FlexCare Platinum with InterCare brush head, in deep clean mode, after a single use, versus Oral-B 7000 with Cross Action brush head This is the sound of sonic technology cleaning deep between teeth hear the difference? The National Advertising Division ( NAD ) determined that the challenged commercials reasonably conveyed a message that the Philips Sonicare line of electric toothbrushes was superior in removing plaque compared to the Oral-B line of electric toothbrushes. The NAD also determined that the challenged commercials reasonably conveyed a message of Philips Sonicare s superior long-term plaque removal and improved oral health compared to Oral-B electric toothbrushes. The NAD found that Philips did not provide a reasonable basis for these messages and recommended that the removes significantly more plaque claim be discontinued. The NAD also determined that one of the messages reasonably conveyed by the challenged commercials is that Philips Sonicare s sound of sonic technology correlates to a superior performance benefit in cleaning deep between teeth compared to Oral-B. The NAD found that Philips did not provide a reasonable basis for this message and recommended that the claim be discontinued. Finally, the NAD questioned the reliability of the Maclure study offered by Philips in support of the challenged claims. Philip s has appealed NAD s decision in its entirety. 2

3 Findings and Conclusions In the absence of consumer perception evidence, the panel steps into the shoes of the consumer to determine what messages are reasonably conveyed by the challenged advertising. In making this determination, the panel considers the specific claims and disclosures in the context of the challenged advertising and the overall net impression of the advertising as normally viewed by consumers. Start your day video commercials Two Start your day video commercials were challenged by P&G a thirty second version and a fifteen second version. Thirty second version The thirty second version opens with a voiceover stating Every day starts better with a healthy smile. Several different Philips Sonicare electric toothbrushes are shown in quick succession, 1 and the voiceover then states that Philips Sonicare is the number one choice of dentists while No. 1 power toothbrush brand Recommended by Dental Professionals is displayed on-screen. The commercial then changes to a side-by-side image of a Philips Sonicare and an Oral-B toothbrush, which shifts to a display of only the Philips Sonicare model. The voiceover states: Compared to Oral-B 7000, Philips Sonicare FlexCare Platinum removes significantly more plaque The following is displayed, for approximately 7 seconds, next to the Philips Sonicare brush: Removes significantly more plaque* versus Oral-B *Philips Sonicare FlexCare Platinum with InterCare brush head, in deep clean mode, after a single use, versus Oral-B 7000 with Cross Action brush head The asterisked disclosure is displayed in smaller and fainter print compared to the more prominent Removes significantly more plaque* versus Oral-B claim. The commercial then displays a simulation of a brush cleaning teeth, accompanied by music and the sound of the Philips Sonicare electric toothbrush, as the voiceover states: 1 While the panel agrees with Philips that the different toothbrushes are not displayed long enough for consumers to identify the model, the panel believes they are displayed long enough for consumers to recognize that they are different in appearance. 3

4 This is the sound of Sonicare technology cleaning deep between teeth. The music stops and an Oral-B brush (with Oral-B 7000 displayed below it) is shown being turned on as the voiceover asks hear the difference? A woman is then shown brushing as the voiceover states: Get healthier gums in just 2 weeks versus a manual toothbrush and experience an amazing feel of clean. In the final segment, the voiceover states Save now when you buy Philips Sonicare as the visual states Save up to $60 on Philips Sonicare DiamondClean. Fifteen second version The challenged fifteen second commercial is a truncated and slightly modified version of the thirty second commercial. With respect to the Sonicare/Oral-B comparison, the voiceover is modified to eliminate reference to the specific Philips Sonicare model [i.e., FlexCare Platinum] and states: Philips Sonicare removes significantly more plaque versus Oral-B The visual display accompanying the above voiceover is also slightly modified to add Philips Sonicare so that it reads Philips Sonicare Removes significantly more plaque* versus Oral-B. The asterisked disclosure is the same as in the thirty second version. The fifteen second commercial eliminates (a) any mention or comparison of the sounds of the Philips Sonicare and/or Oral-B toothbrushes, and (b) the statement that consumers can get healthier gums in just 2 weeks versus a manual toothbrush. Do the challenged commercials reasonably convey a line claim with respect to Philips Sonicare s superiority in plaque removal compared to Oral-B? Prior NAD cases have identified factors to be considered in deciding whether a line claim has been made in challenged advertising: Whether there are general brand references in the advertisement; Whether the advertising copy effectively limits the applicability of the claim; Whether only one variety of the product is shown; and Whether there is a beauty shot of products that may serve to reinforce the extended applicability of the claim. In the challenged advertising, there are several general brand references to Philips Sonicare and more than one variety of the product is shown. More importantly, the commercial does 4

5 not effectively limit applicability of the superior plaque removal claim to a specific Philips Sonicare model/brush combination (FlexCare Platinum with InterCare brush head) compared to a specific Oral-B model/brush combination (Oral-B 7000 with Cross Action Brush head). While the voiceover in the thirty second commercial names the Oral-B 7000 and Philips Sonicare FlexCare Platinum toothbrushes as the objects of comparison, 2 the accompanying visual display does not effectively communicate that only two specific model/brush combinations are being compared. While an Oral-B and Philips Sonicare toothbrush are shown side-by-side, consumers will not likely know which model toothbrush and brush head combination is being displayed. The visual that is clearly displayed on the screen Removes significantly more plaque* versus Oral-B in the thirty second commercial and Philips Sonicare Removes significantly more plaque* vs. Oral-B in the fifteen second commercial makes only general brand references and does not identify the specific toothbrush models and/or brush heads being compared. Philips argues that further details as to the comparison are included in the asterisked disclosure displayed on the screen. However, after viewing the challenged commercials, the panel agrees with the NAD that the asterisked disclosure is not clear and conspicuous. It appears in a smaller font and lighter print than the Removes significantly more plaque* versus Oral-B claim, and the faint white lettering against a light gray/white background makes the disclosure difficult to read and unlikely to be noticed. Because the asterisked disclosure is not clear and conspicuous, consumers viewing the advertisement are not likely to understand several important material details about the comparison being made: The displayed Removes significantly more plaque versus Oral-B claim is not appropriately qualified to indicate the specific models that are the object of comparison; 3 Consumers are not appropriately informed that the claim is limited to two specific brush heads; Consumers are not appropriately informed that the claim is limited to a comparison of toothbrushes in deep clean mode; and Consumers are not appropriately informed that the claim is limited to a comparison of toothbrushes after a single use. 2 As noted above, the voiceover in the fifteen second version names the Oral-B 7000 but refers only generally to Philips Sonicare. 3 While the panel appreciates that the two models are identified in the voiceover of the thirty second commercial, a single voiceover reference is not sufficient to overcome the broader message reasonably communicated by the broader contemporaneous visual display as well as the general brand references made throughout the commercials. 5

6 Based on the net impression of the challenged commercials, the panel agrees with the NAD that one of the messages reasonably conveyed is a line claim with respect to Philips Sonicare s superior plaque removal as compared to Oral-B. Do the challenged commercials reasonably convey a message of Philips Sonicare s superior long-term plaque removal and improved oral health compared to Oral-B? The NAD found that the challenged commercials reasonably conveyed a message of Philips Sonicare s superiority in long-term plaque removal and improved oral health compared to Oral-B. This finding was based in part on the opening every day starts better with a healthy smile statement, the claim that Philips Sonicare is the number one choice of dentists, and the claim that consumers can get healthier gums in just two weeks versus a manual toothbrush. The panel does not agree that the challenged commercials reasonably convey a message of Philips Sonicare s superiority over Oral-B in long-term plaque removal and improved oral health. The every day starts better and number one choice of dentists claims do not reference a long-term time period, and the final claim with respect to consumers getting healthier gums in just two weeks versus a manual toothbrush which was not challenged by P&G in this proceeding will reasonably be understood by consumers as being limited to a comparison of Philips Sonicare electric toothbrushes versus a manual toothbrush. Overall, the panel finds that the consumers will not reasonably take away the message that a longterm benefit is being claimed with respect to the comparison between Philips Sonicare and Oral-B electric toothbrushes. Is the Maclure study reliable? The NAD questioned the reliability of the Maclure study, a cross-over study offered by Philips in support of the challenged commercials, based on a number of concerns. First, the NAD questioned the relevance of the Maclure study because it was conducted in the United Kingdom. The NAD noted that Philips provided no evidence demonstrating that findings from a study population in the U.K. are relevant to the U.S. population with respect to plaque scores. However, the panel notes that the NAD has previously accepted Canadian studies assessing plaque as relevant to the U.S. population, and believes that U.K. studies should similarly be accepted as relevant to the U.S. population absent any indication that the populations have different oral health profiles relating to plaque. The NAD also found that the user instructions provided to Maclure study participants were not provided in a fair and balanced manner because the Oral-B instructions were provided without images that normally accompany the written instructions. However, the panel believes that the written instructions furnished to test participants were sufficient to adequately inform the participants as to proper brushing techniques in this study where the brushings were professionally supervised in accordance with the test methodology. 6

7 The NAD also questioned whether the Maclure study results were consumer relevant because the study tested the Philips Sonicare and Oral-B brushes in their 3-minute deep clean mode instead of the 2-minute regular mode that is recommended for most consumers. While the panel agrees with Philips that it is acceptable to compare the Philips Sonicare and Oral-B electric toothbrushes in a deep clean mode, since both brands provide consumers with a deep clean option, the panel notes that any claims based on the Maclure test would need to clearly and conspicuously disclose in the body of the claim that they are based on testing in the deep clean mode. The NAD also questioned whether the Maclure statistical analysis was done properly because the pre-brushing mean baseline plaque scores on the actual testing days (days 14 and 21) 4 were the same as the mean baseline plaque scores in preliminary assessments used to assign the study participants to random groups; this suggested to NAD that the wrong baseline was used in calculating plaque removal. However, there is nothing in the record to show that the mean baseline plaque scores identified by Philips as the prebrushing scores on testing days were not accurate. Finally, the NAD questioned whether test results showing an 8.7% reduction in mean plaque improvement scores for Philips Sonicare (1.87) as compared to Oral-B (1.64) were consumer relevant or sufficient to support a claim that Philips Sonicare removes significantly more plaque. However, the panel believes that an 8.7% reduction in mean plaque reduction scores, which represents 14% more plaque reduction, is consumer relevant and is sufficient to support a removes significantly more plaque claim in the absence of any evidence in the record showing why that difference is not consumer relevant. While the panel finds that the Maclure study is methodologically sound and that the results submitted by Philips show consumer relevant differences, the panel agrees with the NAD that the Maclure does not support the line claim found to be reasonably conveyed by the challenged commercials because it only tested one specific Philips Sonicare model/brush head combination compared to one specific Oral-B model/brush head combination. The NAD noted that the Maclure study was not significantly different from other single-use studies previously reviewed by NAD. In a previous case involving a challenge to plaque reduction claims made by Philips based on single-use studies, the NAD acknowledged that single-use studies could support a carefully qualified comparative single brushing plaque reduction claim. While the panel finds that the challenged advertising in this case is not sufficiently qualified, the panel s decision does not preclude Philips from making a truthful 4 Test participants were initially assessed for baseline plaque to ensure minimum plaque levels and for purposes of randomization. After the initial assessments, participants were assigned to random groups and given a period of time to use the assigned toothbrush. On day 14 of the test, plaque reduction measurements were taken for the first brush used; participants were then given the other brush and on day 21 plaque reduction measurements were taken for the second brush. 7

8 and carefully qualified comparative single brushing plaque reduction claim based on the Maclure study. Do challenged commercials reasonably convey a message that Philips Sonicare s sound of sonic technology correlates to a superior performance benefit of Philips Sonicare electric toothbrushes as compared to Oral-B electric toothbrushes? The panel does not agree with the NAD s finding that the voiceover stating this is the sound of Sonicare technology cleaning deep between teeth hear the difference? in the challenged advertisements reasonably conveys a superior performance benefit of Philips Sonicare versus Oral-B in cleaning deep between teeth. The voiceover does not use comparative language such as deeper, and does not reasonably link the sound of the Philips Sonicare electric toothbrush to a specific benefit in cleaning teeth. Overall, the panel agrees with Philips that this part of the challenged advertising reasonably communicates only a comparison of the sound of Philips Sonicare s electric toothbrushes to the sound of Oral-B electric toothbrushes. Decision The panel recommends that Philips discontinue the challenged removes significantly more plaque claims. This decision does not preclude Philips from making a truthful and carefully qualified comparative single brushing plaque reduction claim based on the Maclure study. 5 The panel thanks Philips and P&G for their commitment to and participation in the advertising industry s self-regulatory efforts to ensure the truthfulness and accuracy of advertising claims. Advertiser s Statement Philips Oral Healthcare, LLC ( Philips ) accepts, and will comply with, the NARB s decision on advertising for Philips Sonicare Flexcare Platinum. Philips appreciates the NARB s thoughtful reversal of the NAD s interpretation of the Start Your Day advertisements with respect to the long-term health claim and comparative use of sound for the two toothbrush products. Philips also appreciates the NARB s well-reasoned reversal of the NAD s criticism of the Philips study, and is pleased that the NARB accepted Philips study as methodologically sound and sufficient to support the consumer relevant plaque removal superiority of Philips Sonicare FlexCare Platinum under the tested conditions. Philips also appreciates the NARB s efforts to provide clear guidance for future advertisements and clarify inconsistencies in NAD precedent in order to hold all advertisers to the same standards when making similar claims. Philips is fully committed to the self-regulatory 5 The panel believes that a carefully qualified comparative single brushing plaque reduction claim based on the Maclure study would, at a minimum, need to clearly and conspicuously (a) identify, in the body of the claim, the tested toothbrush models and brush heads; (b) disclose, in the body of the claim, that the toothbrushes were tested in deep clean mode for 3 minutes; and (c) disclose that the test results were based on a single brushing by test participants. 8

9 process and will take the NARB s recommendations into consideration when developing future advertisements. 9