Resolving a Potential Comparative Advertising Crisis

Overview

One of France's largest manufacturers and distributors of cosmetic skin care products (the "Client") hired my Firm to provide a solution that would enable it to make the claim that its skin care treatments constitute the "number one" dermo-cosmetic product available in the United States (the "Claim"). The Client planned to make the Claim in conjunction with a million dollar print campaign for in-store advertisements located in retailers from Boston to Washington, D.C.

Objective


The Client intended the Claim to be the centerpiece of its promotion in the United States. Its objective was to use the Claim to increase its market share as a leader in luxury skin care products.

However, the Client was unfamiliar with American advertising law and concerned that competitors might enjoin it from running an effective promotion by successfully challenging the Claim's veracity either in a court of law or in front of the National Advertising Division. Such an injunction not only would have embarrassed the Client publicly, but it would have also resulted in a substantial waste of corporate assets.

Strategy


Initially, my Firm responded by educating the Client on the issues and the process by which comparative advertising law claims are made. Potential causes of action were examined in detail, including those that could be initiated; (1) by the FTC or the FDA at the instigation of a competitor; (2) directly by a competitor in federal court under the Lanham Act; and (3) directly by a competitor before the National Advertising Division.

Thereafter, my Firm worked closely with the Client to modify the Claim to obstruct potential causes of action by competitors. Both attorney and Client worked closely to limit the Claim's language to "Dermo-Cosmetic" products and present it in a manner that was made obvious to the consumer. Absent a competing claim with a product that was essentially the same, the Claim and its supporting documentation effectively deterred the Client's competitors from spending inordinate time and expense pursuing a claim based on false or misleading advertising.

Outcome


The end result of our collaboration was a claim that the Client's product was "the number one Dermo-Cosmetic product prescribed by French dermatologists," which could be verified by independent studies commissioned by my client at my Firm's suggestion. Additionally, the enhancements that were made to the Claim served to make a more effective presentation leading to increased sales of the product throughout the Northeast corridor. Specific sales results were not made available, but the Client assured my Firm that the promotion was extremely successful.