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Best Soup Ever? Suits Over Ads Demand Proof

A diamond is forever? Prove it.

Companies that were once content to fight in grocery-store aisles and on television commercials are now choosing a different route — filing lawsuits and other formal grievances challenging their competitors’ claims. Longtime foes like Pantene and Dove, Science Diet and Iams, AT&T and Verizon Wireless, and Campbell Soup and Progresso have all wrestled over ads recently.

The goal is usually not money but market share. Companies file complaints to get competitors’ ads withdrawn or amended.

The cases themselves might seem a little absurd — an argument over hyped-up advertising copy that not many consumers even take at face value. Pantene has attacked Dove’s claim that its conditioner “repairs” hair better, and Iams has been challenged on one of its lines, “No other dog food stacks up like Iams.”

Dueling advertisers, however, argue that these claims can mislead consumers and cause a pronounced drop in sales. Since advertisers are required by law to have a reasonable factual basis for their commercials, their competitors are essentially demanding that they show their hand.

The increase in these actions may be a reflection of the dismal economy: in recessions, when overall spending lags, advertisers must fight harder for customers. “In this economy, where margins are a bit tighter, a lot of marketing departments have decided to become more aggressive in going after their competitors in the hopes that they can either protect their market position or capture additional market share,” said John E. Villafranco, a law partner at Kelley, Drye & Warren who specializes in advertising.

The number of complaints over ads from competitors filed with the National Advertising Division of the Council of Better Business Bureaus, the industry’s main self-regulatory program for national ads, is on track to set a record this year. There have been 82 formal complaints so far in 2009, after last year’s record of 84 challenges, a sharp increase from 62 in 2007 and 52 in 2006.

Other companies file false-advertising lawsuits under the Lanham Act, passed in 1946 to strengthen trademark law. While there are no reliable tracking numbers on cases filed under that law, lawyers say they are seeing an increase.

This May, for instance, a judge issued a temporary order telling DirecTV to modify ads claiming that the bankruptcy of a rival, Charter Communications, would affect its service, after Charter sued. (The companies later settled.) United Parcel Service stopped running ads saying it was the “most reliable” shipping company after FedEx sued in May, arguing that the claim was based on outdated information.

Defending claims made in ads sometimes requires delving into minutiae. The Pantene-Dove case centered on whether Dove Therapy repaired hair better than a Pantene conditioner. To defend its conditioner ad, Dove supplied a study measuring the combing force required by treated hair, a study on breakage in a 200-strokes-per-tresses test, and had an expert defend its decision to use the “wet combing” method rather than “dry combing.” (The National Advertising Division ruled that Dove should limit its better-than-Pantene claims to smoothness and strength on severely damaged hair.)

Linda A. Goldstein, a partner at Manatt, Phelps & Phillips, who represents clients in advertising disputes, said such disputes had become part of a “war game” for marketers.

“How brands will deal with their competitors’ advertisements is an increasingly important component of the overall marketing strategy,” she said. “When we’re sitting with clients, we will explore lots of permutations, whether it’s offensively or defensively.”

This month, in one of the more hotly contested parts of the economy — cellphones — AT&T sued Verizon Wireless over, literally, white space. In October, Verizon began comparing its third-generation wireless network to AT&T’s in television commercials called “There’s a Map for That.” AT&T isn’t challenging the crux of the ad, which is that Verizon has more thorough wireless 3G coverage than AT&T. Rather, it is upset over a chart of two maps comparing the companies’ networks.

“There are vast spaces of white in the map that depicts AT&T’s coverage, and the complaint centers on those white spaces,” said Mark Siegel, a spokesman for AT&T. “It suggests to the viewer that not only is there no 3G coverage in that area, but there is no coverage at all.” Although there is text on the graphic indicating that it compares just 3G networks, Mr. Siegel said that was not enough.

This Monday, Verizon responded with its own crisply worded filing. “AT&T sued because Verizon’s ads are true and the truth hurts,” the company wrote in the court document, opposing AT&T’s request that its ads be withdrawn immediately. (On Wednesday, a judge in Federal District Court in Atlanta denied AT&T’s request to halt the ads immediately; Mr. Siegel said AT&T would continue the suit.)

Filing a complaint with the National Advertising Division is cheaper than a lawsuit, costing $2,500 to $20,000. The downside is that the program is voluntary and it has no legal power. By going to court, Ms. Goldstein said, companies can file for an injunction and get the ads stopped within days, versus the two to three months that the voluntary process takes, she said.

“If there’s a true injury to market share, then going to court may be a more desirable alternative,” she said.

Rewards can be significant: In March, a federal court in New Jersey ruled that General Electric’s GE Healthcare division inappropriately used study results to suggest that its X-ray product was safer than that of a rival, Bracco Diagnostics. The court told G.E. to pay $11.4 million.

But, as with all attacks on competitors, these disputes run the risk of persuading consumers to avoid not just a rival’s product, but the product altogether.

Last fall, Campbell Soup started an ad campaign that said its Select Harvest soups were “Made with TLC” while labeling Progresso soups, from its rival General Mills, “Made with MSG.” Progresso responded with its own campaign, and then both companies complained to the advertising review division, which recommended withdrawal of some ads from both sides.

The damage was already done. Unit sales in the General Mills category that includes Progresso (called, unappetizingly, ready-to-serve wet soups) rose in the fourth quarter of 2008, compared with the same quarter a year earlier, said Information Resources, a research firm in Chicago.

But since then, unit sales of wet soups at both companies have declined every quarter. A UBS analyst, David Palmer, attributed the drop largely to the advertising battle.

“They’re navel-gazing and they’re not thinking about what consumers want to hear — they’re just talking at conference tables about how to strike back or how their integrity has been affected,” said James P. Othmer, author of “Adland: Searching for the Meaning of Life on a Branded Planet.” “They get caught up in each other’s messages.”

 

Stephanie Clifford, The New York Times. November 22, 2009

Copyright © 2009 The New York Times Company. All rights reserved.

 

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