NAD Determines Oracle Acted Properly in Discontinuing Performance Claim Couched in ‘Contest’ Language

New York, NY – Nov. 20, 2012 – The National Advertising Division has determined that Oracle Corporation took necessary action in discontinuing advertising that stated its Exadata server is “5x Faster Than IBM … Or you win $10,000,000.”

The claim, which appeared in print advertising in the Wall Street Journal and other major newspapers, was challenged before NAD by International Business Machines Corporation.

NAD is an investigative unit of the advertising industry system of self-regulation and is administered by the Council of Better Business Bureaus.

As an initial matter, NAD considered whether or not Oracle’s advertisement conveyed a comparative performance claim – or whether the advertisement simply described a contest.

In an NAD proceeding, the advertiser is obligated to support all reasonable interpretations of its advertising claims, not just the message it intended to convey.
In the absence of reliable consumer perception evidence, NAD uses its judgment to determine what implied messages, if any, are conveyed by an advertisement.

Here, NAD found that, even accounting for a sophisticated target audience, a consumer would be reasonable to take away the message that all Oracle Exadata systems run five times as fast as all IBM’s Power computer products.
NAD noted in its decision that the fact that the claim was made in the context of a contest announcement did not excuse the advertiser from its obligation to provide substantiation.

The advertiser did not provide any speed performance tests, examples of comparative system speed superiority or any other data to substantiate the message that its Exadata computer systems run data warehouses five times as fast as IBM Power computer systems.

Accordingly, NAD determined that the advertiser’s decision to permanently discontinue this advertisement was necessary and appropriate. Further, to the extent that Oracle reserves the right to publish similar advertisements in the future, NAD cautioned that such performance claims require evidentiary support whether or not the claims are couched in a contest announcement.

Oracle, in its advertiser’s statement, said it disagreed with NAD’s findings, but would take “NAD’s concerns into account should it disseminate similar advertising in the future.”