Business litigation can test the validity of competitor’s claims

In Georgia and throughout the country a business may challenge the advertising of its competitors through the court system and before administrative agencies. In addition to filing business litigation, this may also be done more informally through the National Advertising Division of the Council for Better Business Bureaus. For example, one maker of probiotic supplements sued another maker of those products for making unsupported claims about its products.

Recently, the NAD decided in favor of the complainant, Proctor & Gamble Co., and against i-Health, maker of the Culturelle brand’s LGG probiotic. P&G is the manufacturer and seller of probiotic brands such as Align probiotic supplements. The giant consumer goods company complained to the NAD that i-Health was falsely representing its product as being “the #1 Proven Effective Probiotic.” It also used terms like “most clinically proven effective” and similar phrases.

P&G claimed that the company could not support the claim of being the most effective clinically proven product for digestive and immune health. P&G argued that in order to make such claims i-Health must prove that its product is in fact the most effective in producing the promised overall health-related benefits. The complaint argued that the i-Health would also have to prove by clinical trials that its product was the most effective for balancing digestion, and for treating gas, diarrhea and bloating.

The NAD agreed that the use of the terms “most clinically proven” and “clinically proven effective” indicate to consumers that scientific evidence exists to back up these claims when in fact it does not exist. Without comparative, scientifically valid, tests to back up these claims, there is no way to support the accuracy of the ads, the NAD concluded. Although i-Health said that it did not make head-to-head comparisons with any other product, it also announced that it would abide by the NAD recommendation to stop using the challenged terms. Such disputes are common in Georgia as well as nationwide, and they may develop into business litigation cases if not resolved first through more informal means.