NARB Recommends Chattem Discontinue Certain Claims for ACT Dry Mouth Mouthwash and ACT Dry Mouth Lozenges; Approves Others

New York, NY – June 12, 2019 – A panel of the Advertising Review Board (NARB) has recommended that Chattem, Inc. discontinue certain advertising claims for ACT Dry Mouth Mouthwash and ACT Dry Mouth Lozenges, while also approving others. The advertising at issue had been challenged by GlaxoSmithKline Consumer Healthcare, L.P., the manufacturer of the competing Biotene brand oral care products, before the National Advertising Division (NAD).  The NAD is an investigative unit of the advertising industry’s system of self-regulation administered by the Council of Better Business Bureaus.  Following the NAD’s decision, Chattem appealed certain recommendations made by NAD to the NARB, the appellate unit of the advertising industry’s system of self-regulation. GSK exercised its right under the applicable rules of procedure to file a cross-appeal.

In the underlying NAD decision, GSK challenged advertising claims for each of a family of four ACT Dry Mouth Products: toothpaste, mouthwash, lozenges, and spray/rinse.  The issues before the NARB panel were limited to the mouthwash and lozenges products. 

With regard to Chattem’s claims that ACT Dry Mouth Lozenges “are uniquely formulated to stimulate saliva flow,” the NARB panel noted that there was no evidence in the record to support uniqueness, and Chattem advised that it was willing to withdraw the reference to “uniquely.”  Further, the panel disagreed with NAD’s conclusion that Chattem’s claims that ACT Dry Mouth Lozenges “are uniquely formulated to stimulate saliva flow” and “soothe and moisturize” conveyed to reasonable consumers the message that the lozenges provide benefits in excess of readily available products on the market that are not positioned as dry-mouth remedies.  The panel concluded that the necessary support for these claims (except for the word “uniquely”) was provided by a consensus in the medical field that lozenges help address dry mouth symptoms.

After considering whether Chattem provided a reasonable basis for its claim that ACT Dry Mouth Mouthwash “provides immediate, long-lasting relief,” the NARB panel agreed with NAD’s conclusion that “long-lasting relief” is not supported by data from Chattem’s clinical study, and recommended that the claim be discontinued.  However, the panel did not share NAD’s concerns regarding the “immediate” claim, instead accepting Chattem’s ingredient analysis as proper substantiation for the claim and noting that it was not disputed that a mouthwash formulated with the goal of addressing dry mouth would provide an immediate benefit to the user. The NARB panel also upheld Chattem’s appeal with respect to the claim that ACT Dry Mouth Mouthwash “soothes dry mouth,” concluding that it was properly supported by Chattem’s ingredient analysis.

Finally, with regard to GSK’s cross-appeal on the ACT Dry Mouth Mouthwash claim “relieve dry mouth symptoms by moisturizing and lubricating dry oral tissue,” the NARB panel arrived at the same conclusion as NAD in finding the claim supported, although with different reasoning.  While NAD found that Chattem’s clinical study substantiated these moisture-related claims, the view of the NARB panel was that Chattem’s ingredient analysis provided proper support for such claims.

Chattem stated that it will comply with the NARB’s recommendations and expressed its appreciation for the panel findings that “Chattem has appropriately positioned its ACT Dry Mouth products in a truthful and non-misleading manner.”Note: A recommendation by NAD or NARB 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.