NARB Refers Advertising Claims Made by Doskocil to Federal Trade Commission After Company Fails to Comply with NARB Recommendations

New York, NY – August 8, 2019 The National Advertising Review Board (NARB) has referred advertising claims made by Doskocil Manufacturing Company, Inc., doing business as Petmate, to the Federal Trade Commission (FTC) for review after the company failed to take good faith steps to comply with NARB’s recommendations regarding discontinuation of challenged antimicrobial protection claims.

The advertising at issue had been challenged by Van Ness Plastic Molding Company, a manufacturer of competing cat litter pans, before the National Advertising Division (NAD). The NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB NP’s self-regulatory and dispute resolution programs.

In the underlying 2018 proceeding, NAD concluded that the advertiser failed to provide a reasonable basis for its antimicrobial protection claims and recommended that the claims “With Built-In Antimicrobial Protection,” “Inhibits the Growth of Odor-Causing Bacteria on the Pan,” and related claims be discontinued. Petmate appealed NAD’s adverse findings to the NARB. The NARB panel determined that the challenged claims conveyed an implied message that the antimicrobial properties of the Petmate cat litter pans provide a consumer-relevant benefit, specifically an odor-reduction benefit, but that the advertiser failed to support or demonstrate any odor-reduction benefit. The NARB panel recommended that the advertising claims under review  be discontinued, and Petmate agreed to comply with these recommendations.

In July 2019, NARB initiated a compliance inquiry in response to concerns raised by Van Ness about Petmate’s compliance with NARB’s recommendations.  Pursuant to Section 4.1-B of the Policies and Procedures of the BBBB NP, the NARB Chair assessed whether or not Petmate complied with the NARB panel’s decision and, if not, whether, after a “reasonable amount of time,” it has failed to make a “bona fide attempt to bring its advertising into compliance.”

Petmate provided examples of revised advertising for its litter pans. The advertiser’s webpages and product packaging contain the following claim: “Treated with Microban for built-in antimicrobial protection” (the “Revised Claim”). After reviewing the Revised Claim, NARB determined that the advertiser did not comply with the panel decision recommendations. NARB concluded that the Revised Claim (“Treated with Microban for built-in antimicrobial protection”) is fundamentally the same as a claim which the NARB panel recommended be withdrawn (“With Built-In Antimicrobial Product Protection”) and is within the scope of claims Petmate agreed to discontinue. 

Further, NARB determined that the Revised Claim is unsupported because it conveys an implied odor-protection claim which, as was concluded in the NARB panel decision, cannot be supported by the technical analysis conducted by Petmate’s supplier. Because the method of analysis used to measure antimicrobial activity in the Petmate pans was qualitative, not quantitative, it could not measure the degree of inhibition.

Given Petmate’s failure to comply with NARB’s recommendation, NARB has referred the advertising to an appropriate government agency (in this case the FTC) for possible enforcement action.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.