NAD Refers Advertising from Colgate to FTC for Further Review

New York, NY – July 16, 2014 – The National Advertising Division has referred to the Federal Trade Commission advertising claims made by the Colgate-Palmolive Company for its Colgate Optic White Toothpaste, following a finding that the company did not comply with NAD’s recommendations.

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

NAD’s decision comes at the close of a second compliance proceeding stemming from a challenge brought by The Procter & Gamble Company, maker of Crest Whitestrips, in 2012. In that underlying case, P&G challenged certain advertising claims made by Colgate in print and Internet advertising, a television commercial, and on product packaging and in-store displays.

The core issue addressed by NAD in its underlying decision were whether the 1% peroxide contained in Colgate Optic White functioned as a significant “whitening ingredient,” whether it offered a meaningful whitening benefit and whether it provided the equivalent whitening benefit of Whitestrips.

NAD concluded that the advertiser’s evidence was insufficiently reliable to support the express claim “Same Whitening Ingredient as Strips,” or the implied message that the 1% hydrogen peroxide as contained in Optic White functioned as a significant whitening agent on both intrinsic and extrinsic stains, or that Optic White provides the same level of whitening improvement as Whitestrips. NAD recommended that the claims be discontinued.

Although NAD found that the advertiser provided a reasonable basis for the stand-alone claim that Optic White provides whiter teeth in one week – or whiter teeth in one week as compared to a regular, non-whitening toothpaste – NAD cautioned that the advertiser avoid conveying the unsupported message that this whitening improvement is attributable to the peroxide contained in Optic White.

In the latest advertising for Colgate Optic White Toothpaste, the advertiser’s product packaging claims that Optic White Toothpaste, “Goes Beyond Surface Stain Removal to Deeply Whiten,” that “This Unique Formula is Clinically Proven to Whiten Teeth With Peroxide,” and that the product “Goes Beyond Surface Stains Unlike Ordinary Toothpastes.”

In response to NAD’s compliance inquiry, the advertiser stated that the product has been reformulated and argued that it had undertaken new studies and developed other evidence that support the claims made for the reformulated Optic White product’s intrinsic whitening capabilities and its performance superiority versus Crest Express Whitestrips, as opposed to Crest Whitestrips, the object of comparison in the earlier proceeding.

However, NAD observed that the peroxide content of the reformulated product remains at 1% and determined that changes to the reformulated product are of little consequence with respect to the advertiser’s claims of Optic White’s ability to provide whitening benefits below the tooth surface or its comparison to strips. Further, NAD found that claim challenged in this compliance proceeding is not markedly different than the claim challenged in the underlying case.

NAD also noted that it does not – in compliance review cases – examine post-decision testing and/or studies offered as support for claims that it has previously recommended be discontinued. Rather, the purpose of a compliance proceeding is to offer the advertiser the opportunity to provide information on the steps it has taken to bring its advertising into compliance with NAD’s recommendations in the underlying case.

NAD has found that the claim “whitens deeper’ and related claims contravene NAD’s earlier decision and recommendations and recommended the company modify its broadcast advertising to remove the word “deeper” and to avoid any implication that the Optic White product intrinsically whitens teeth.

Colgate, in its advertiser’ statement reiterated its position that this is a new product, the claims for which were supported by new tests and clinical studies Notwithstanding its respect for the NAD and the self-regulatory process, Colgate stated that it had no choice but to decline to accept NAD’s recommendations for modifying the advertising at issue.

NAD was disappointed that the advertiser declined to bring its advertising into compliance with NAD’s decision and its recommendations. In light of the advertiser’s position, NAD referred the matter to the Federal Trade Commission for possible law enforcement action.