NAD Recommends Colgate Palmolive Discontinue ‘Natural,’ ‘Naturally’ Claims for ‘Tom’s of Maine Naturally Dry Antiperspirant;’ Advertiser Appeals NAD’s Jurisdiction

New York, NY – Sept. 20, 2016 –  The National Advertising Division has recommended that The Colgate Palmolive Company discontinue “Natural” and “Naturally” claims for the its Tom’s of Maine “Naturally Dry” Antiperspirants. The company has said it will appeal the matter of NAD’s jurisdiction to the National Advertising Review Board, the self-regulatory system’s appellate unit.

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

Express and implied claims made in advertising by Colgate Palmolive were challenged by Unilever United States, Inc., a competing manufacturer of antiperspirants and deodorants.

Unilever challenged claims that included:

  • “Naturally Dry”
  • “It really works. Naturally.”
  • “Natural Powder”
  • Ingredients “meet our stewardship model for safe, effective, and natural.”

NAD also considered whether the advertising at issue implied that Tom’s “Naturally Dry” is formulated without aluminum, the active ingredient in all antiperspirants, or whether it implied that the product is made with natural processing methods.

As an initial matter, NAD considered Colgate Palmolive’s position on NAD’s jurisdiction. ASRC procedures provide that NAD should administratively close a case if it determines that “the advertising claims complained of are … the subject of pending litigation or an order by a court.”

Colgate argued that the claims at issue are both the subject of pending litigation and the subject of an order by a court.

Indeed, Colgate has settled class-action litigation related to the “natural” composition of Tom’s products. As NAD noted in its decision, however, a court-ordered settlement in class-action litigation takes into account the fairness of the results and the fairness to the class, but the court does not make findings as to the truthfulness of the advertising claims at issue.  Further, NAD noted,  while a court order evaluating the truthfulness of the same advertising claims would result in duplicative proceedings and might result in inconsistent guidance on the advertising claims, a court order approving a litigation settlement is unlikely to produce inconsistent guidance particularly where, as in this case, the settlement did not require changes to the challenged advertising claims.  NAD determined that it retained jurisdiction to review the challenged claims on their merits.

Turning to Tom’s “natural” claims, NAD noted that the active ingredient in the product, aluminum chlorohydrate, is not natural; claims that a product is natural when the active ingredients are not is a different matter than making a “natural” claim where most ingredients, including all active ingredients, are natural and a small percentage of the product ingredients are not natural.  For example, in a prior case involving a Tom’s of Maine product, NAD found the “pure simple ingredients from nature claim” was supported where all the active ingredients were naturally sourced but approximately 1% of the product was a non-natural emulsifying agent.

NAD was also not persuaded that listing of ingredients on product packaging and directing consumers to the Tom’s of Maine webpage for its definition of natural and information about its Stewardship Model cured the misimpression created by the calling the Tom’s of Maine Antiperspirant products “naturally dry.”

NAD noted that “Naturally Dry” is the product name and is cognizant of the burden placed on an advertiser when its decision affects the product name.  NAD concluded that “naturally dry,” as it appears both in Tom’s advertising and product packaging conveys an express message that natural ingredients are responsible for the dryness provided by this antiperspirant, a message that is not supported.

During the course of NAD’s review, Colgate advised NAD that it was modifying its packaging to add the claim “contains recycled aluminum,” on the cap of each product and argued that the modification informed consumers that the product’s active ingredient was aluminum.

NAD noted its appreciation for the advertiser’s efforts to inform consumers clearly about the ingredients used in its products, but found the modification did not eliminate the possibility of consumer confusion.

NAD recommended that the advertiser discontinue claims that Tom’s of Maine Naturally Dry Antiperspirant is “naturally dry,” including the claim as it appears in its product name, as well as other claims that the antiperspirant is “natural,” or that “It really works. Naturally.”

NAD noted that the advertiser is free to promote its use of natural ingredients in the product and the fact that the aluminum salt is derived from recycled aluminum.

In its advertiser’s statement, the company said that it “respects and values the self-regulatory process, but respectfully disagrees with the NAD’s decision to hear this matter in light of the NAD Policies and Procedures setting out NAD’s jurisdiction. The claims at issue in this challenge are identical to those at issue in a class litigation.  That litigation was fully resolved by a court order.  Tom’s of Maine therefore requests referral of the decision regarding NAD’s exercise of jurisdiction to a panel of the National Advertising Review Board.”

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.