Dueling Driver Campaigns Missing the Fairway with the National Advertising Division: Thoughts on How to Avoid the Sand-Traps Going Forward
By Amy Mudge, Randy Shaheen and Margaret Kelly
Their drivers consistently face off on the green. Now two of golf’s leading names in equipment have gone head-to-head on a different course: the fairways of the National Advertising Division (NAD), with Taylor Made and Callaway filing competing challenges with the NAD against one another regarding the legitimacy of their respective ad campaigns championing their newest drivers. And while it might be too hot to golf this summer, it is never too hot to blog about golf. But sit tight as this saga is a full 18 holes:
TaylorMade v. Callaway: The Representative Sample-Set Sand-Trap
In the first case, Taylor Made challenged Callaway’s claim that its RAZR Fit Xtreme driver is the “longest driver in golf,” “across the broadest range of player abilities possible,” including its #LongestDriverinGolf hashtag as part of the “Tweet to Unleash” twitter campaign.
Taylor Made contested that Callaway’s evidence was deficient to support its claim that golfers of every skill level will drive a longer distance with Callaway’s driver. Forming the basis of its challenge, Taylor Made objected to several aspects of Callaway’s testing, including: the number of other drivers compared to the RAZR Fit Xtreme (five models, all of which were from 2012); the selection of the drivers used in the comparative testing (the top five selling drivers based on dollar market share); the alleged overrepresentation of highly-skilled golfers; and the fact that Callaway used its own employees in the testing.
The NAD agreed with Taylor Made that the reasonable takeaway was that any golfer—regardless of skill level or size—would hit a longer drive with Callaway’s driver than with any other driver on the market.
Next, NAD considered the evidence Callaway proffered to substantiate its claim. This evidence consisted of Callaway’s testing-protocol. In broad strokes, Callaway tested its RAZR Fit Xtreme against the top five selling competing drivers, which Callaway stated account for 54% of the dollar market share and 42.4% of the unit market share. NAD agreed with Taylor Made’s concerns regarding the sufficiency of the pool of competing drivers Callaway tested. It was a tough course for Callaway unless it could show superiority as to a broader group, typically at least 85% of the market.
The portion of the claim where there are fewer guidelines is “regardless of skill level.” While there are no doubt some reasonable bounds to this claim (e.g., probably no need to test a sampling of nongolfers), it might have been helpful to have a pool of test-subjects demonstrative of a broader range of golfers (the majority of Callaway’s testers had a handicap of 6 or under). Finally, in attempting to capture a representative and neutral pool of test-subjects, Callaway might have avoided the sand-trap had it included test-golfers that were not affiliated with the company.
Taylor Made and the NAD were both concerned that given the difficulty of blinding the study subjects to the drivers they were using, the employees could have (intentionally or otherwise) swung harder, or performed better, when using Callaway’s driver purely because the driver was made by the company that employs them.
NAD noted in its decision, that in order to support a superiority claim such as Callaway’s, an advertiser must test at least a “representative sampling” or “wide range” or “representative cross-section.” What constitutes said “wide range” or “representative sampling” can vary, depending on the nature of the product and how fragmented the marketplace in question is. Ultimately, Callaway’s testing-pool and procedures failed to meet the NAD’s stress test.
Callaway v. TaylorMade: The “Average” Sand-Trap
Not being one to take its ball and go home, Callaway decided to play it where it lay, if you will, and file its own challenge against one of Taylor Made’s claims – that “the average golfer picked up about 17 yards with the ROCKETBALLZ 3-Wood.”
This retaliatory challenge on Callaway’s part goes to show that before taking on a competitor in a field as fierce as golf gear, the challenger should make sure its own house is in order. Challenging a competitor inevitably leaves the challenger vulnerable to having its own ad campaigns put under the microscope.
Callaway focused on a single video on Taylor Made’s website where Taylor Made’s CEO claims, without qualification, that “the average golfer picked up about 17 yards” with Taylor Made’s 3-wood. This video was also posted on YouTube.
Taylor Made, in response, said the company “accidentally used the word ‘average’ vs. ‘better’ in a single product video last year.” “Once this mistake was called to our attention,” Taylor Made continued, “we did not wait for the NAD process and took immediate action to revise the video to ensure the golfer was not being misled.”
Taylor Made’s action on this front was a hole-in-one. Indeed, despite the NAD’s determination that it did have jurisdiction to review the claim since the ad was active at the time of the challenge, and despite its concurrence with Callaway that Taylor Made did not have evidence sufficient to establish the basis for its challenged claim, the NAD was satisfied with Taylor Made’s removal of the offending video.
The 19th Hole: Takeaways for Advertisers
These decisions present a handful of important takeaways for advertisers. First, before making a superiority claim, an advertiser should be sure that the supporting evidence is sufficient and that the comparatively-tested competitors’ products constitute a “wide range” or “representative sampling.” Second, it is crucial to remember that advertisers are responsible for all reasonable interpretations of their claims, not simply the explicit message a claim is intended to convey.
Finally, advertisers should be aware that the NAD has jurisdiction over all national advertising claims that have not been permanently withdrawn prior to the date of the complaint; if the claim is active at the time of the challenge, it’s fair game.
Amy Mudge and Randall Shaheen are partners in Venable’s Regulatory and Advertising and Marketing Practice Groups. They represent clients before the Federal Trade Commission, Consumer Financial Protection Bureau, Department of Justice, state attorneys general and the National Advertising Division. Their clients include performance apparel companies, sporting goods retailers and manufacturers, and sports leagues. Additionally, they are both co-editors of a blog about issues critical to advertising and consumer law which can be accessed at www.allaboutadvertisinglaw.com. Margaret Kelly is a Venable summer associate and not admitted to practice law.
