NAD Recommends Kimberly-Clark Discontinue Use of Enhanced Photos in Advertising for Adult Underwear Following P&G Challenge

New York, NY – July 27, 2017 – The National Advertising Division has recommended that Kimberly-Clark Worldwide, Inc.  discontinue the use of photographs that have been edited in advertising for the company’s adult incontinence underwear as well as certain claims made by the advertiser on product packaging, on its website, in free-standing inserts and online advertisements challenged by the Procter & Gamble Company, the maker of competing products.

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 reviewed depictions of the products’ “look” when worn alone, reinforced by surrounding descriptive text such as “close-to-body fit,” “feminine design for a smooth, sleek fit,” and “yoga pants approved.”

NAD also examined claims that KC’s “Depend Night Defense” is “the only underwear with Night Defense Protection” and “specifically designed for nighttime use” to determine whether the claims conveyed the messages that Depend is the only product that can protect at night and or that Depend provides superior overnight protection versus competing incontinence underwear products.

P&G asserted that KC’s packaging photographs accompany claims like “close-to-body fit” and that consumers will understand the photographs to be a demonstration of the product’s actual fit.   P&G argued that on the product packaging, Depend products appear to fit flawlessly on each of the models used by KC, with no creases, wrinkles, texture, bunching or bulk.  P&G contended that consumers will rely on the most prominent aspect of Depend’s packaging, its photographs, when making a decision whether to purchase based on anticipated fit.

KC rejected P&G’s characterization of the modeling shots as fit demonstrations, arguing that photographs can only be considered demonstrations if consumers would reasonably expect the photographs to reflect the typical consumer’s experience.

NAD noted in its decision that KC developed its products with the “goal of reducing the stigma of incontinence and restoring dignity to consumers who need incontinence products.”

Its Silhouette product was designed with a smoother fit and an underwear-like waistband to fit discreetly under clothing.  Its overnight product, Night Defense, is designed to be soft and comfortable but provide increased absorbency to be used overnight.

The central issues in this challenge were whether images of real women wearing actual Depend Silhouette products convey a message about the appearance and fit of those products (a message which requires support) or whether the images are an idealized portrayal that can be digitally enhanced; and whether its claim “the only underwear with Night Defense* protection” in the context of its product packaging conveys a message that only this product provides overnight protection.

NAD reviewed the advertising in context to determine the messages reasonably conveyed and noted in its decision that both the product names “Silhouette,” and “Silhouette Active Fit” and the claims on the packaging emphasize the fit of the product, noting that there was no dispute that the images on Depend product packaging were altered in post-production to minimize (but not eliminate) visible shadows and wrinkles in the Depend product.

The product packaging also included claims that describe the fit of the product as “smooth” and “sleek,” adjacent to images of women in active poses, in close-fitting clothing like yoga pants and jeans, as well as adjacent to images of women wearing the Depend product by itself.  NAD concluded that it would be reasonable for consumers to take away the message that the depictions on the product packaging are a demonstration that reflects the way the product actually fits on the models in the photographs.

NAD noted, with appreciation, that photos of women wearing the Depend product underneath form-fitting clothing were not materially enhanced and show that the product closely hugs the wearer. However, NAD was concerned that a reasonable takeaway from the photographs of women wearing the Depend without clothing is that the product does not have the visible wrinkles, bulges and creases that were digitally removed from the photograph.

NAD noted in its decision that product demonstrations – which are used to enable consumers to witness, with their own eyes, how products perform – must accurately reflect how the advertised product works and not materially distort the performance capability of the advertiser’s or the competitor’s product.

NAD noted further that the “advertiser is free to optimize the fit of its underwear by using a specific model or by leaving the product out of the box for a few days to minimize creasing, but when product packaging makes claims about the sleek, smooth fit of the product and demonstrates its fit, the fit should not be digitally enhanced.”

NAD recommended that the advertiser discontinue its use of digitally enhanced photographs which depict the fit of the Depend product on its product packaging and advertising.   NAD further recommended that the advertiser either discontinue the claim “The only underwear with Night Defense* protection or modify the claim to tie it to its unique technology.

KC, in its advertiser’s statement, said the company will comply with NAD’s recommendations.  “Although Kimberly Clark disagrees with the outcome of this case, it values the self-regulatory process and appreciates NAD’s efforts.   It will take NAD’s recommendations into account in developing future advertising.”

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.