NAD Finds P&G Can Support ‘Up To’ Claims Challenged by Energizer, but Recommends Clearer Disclosure in Some Media

New York, NY – Sept. 17, 2015 – The National Advertising Division has determined that the Procter & Gamble Company can support “up to” claims made on product packaging and in point of sale, Internet and television advertising for its Duracell brand Coppertop and Quantum batteries, but recommended the advertiser more clearly disclose in some media that results will vary by device and usage patterns.

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

Energizer Holdings, Inc., maker of competing alkaline batteries, challenged express claims that included:

  • “Up to 35% longer lasting vs. Energizer Max*”
  • “Up to 15% longer lasting vs. Energizer Max*”
  • “*AA size. Results vary by device and usage patterns.”

The challenger’s Energizer Max batteries compete directly with the advertiser’s Coppertop and Quantum batteries in the disposable AA battery category. NAD noted that much of the dispute between the parties centered on how many consumers would attain the claimed benefit when using Coppertop or Quantum batteries, based on the test results in the record,  and whether that amount was sufficient to substantiate the advertiser’s “up to” claims.

The parties each relied on a different set of battery performance tests as support for their positions. The challenger contended that the current official industry standard ANSI tests, adopted in 2009, are the most appropriate, while the advertiser argued that NAD should look to a set of tests that was more recently approved by the relevant ANSI committee, but not officially in effect at the time of the challenge. The advertiser argued that the more recent standard was more consumer relevant. NAD found that the advertiser’s use of the more recently revised ANSI standard set of tests was appropriate as support for its battery performance claims.

Following its review of the evidence in the record, NAD determined that because an “appreciable number” of consumers would be able to attain the claimed benefit, the advertiser provided a reasonable basis for its claim that Duracell Coppertop AA batteries are “up to 15% longer lasting than Energizer Max* *AA size. Results vary by device and usage patterns.”

Further, NAD determined that the advertiser supported its claim that Duracell Quantum AA batteries are “up to 35% longer lasting than Energizer Max* *AA size. Results vary by device and usage patterns.”

NAD noted, however, that without a clear and conspicuous disclaimer limiting the claim to AA batteries and explaining that results will vary by device and usage patterns, consumers would not understand that their ability to attain the claimed benefit depends on how they use each AA battery. NAD found that advertiser’s product packaging stickers used a sufficiently clear and conspicuous disclaimer to qualify the main claim. However, NAD determined that disclaimers on the advertiser’s shelf talker placards and in its television commercial were not clear and conspicuous and recommended that those versions of the claim be discontinued or modified to clearly and conspicuously disclose the necessary qualifying language in immediate proximity to the “up to” claim.

Regarding the television commercial, NAD recommended that, to avoid an unsupported line claim, the advertiser include the claim’s limitation to AA batteries in the main claim.

P&G, in its advertiser’s statement, said that “Duracell values the self-regulatory process and appreciates NAD’s close attention to the record in this matter.”

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.