Following a complaint by cable provider Comcast, the Better Business Bureau’s National Advertising Division (NAD) urged DirecTV to abandon certain advertising claims found in its popular series of television ads featuring actor Rob Lowe. See April 7, 2015 Press Release here.
The commercials, which promote the benefits of DirecTV’s satellite television subscription services over cable, feature Rob Lowe as a DirecTV subscriber, and a variety of Rob Lowe alter egos, including “super creepy Rob Lowe,” “crazy hairy Rob Lowe,” and “scrawny arms Rob Lowe,” who subscribe to cable. In the commercials, DirecTV claims that its service has:
- 99% signal reliability
- up to 1080 p [HD] picture quality
- the industry’s best picture quality and sound, and that its service is
- the undisputed leader in sports; and
- ranked higher than cable for over 10 years.
At the end of many of the commercials, Rob Lowe tells consumers “Don’t be like this me. Get rid of cable and upgrade to DirecTV.” YouTube.
According to the NAD, DirecTV’s advertising implied that its service had better signal reliability than cable, better picture and sound quality than cable, and that its sports programming was superior to cable’s sports programming. Because the NAD determined that there was no supporting evidence for any of these claims, it recommended that DirecTV discontinue them. The NAD did determine that DirecTV’s testing substantiated its “99% signal reliability” and “up to 1080p” picture quality claims, although it recommended that DirecTV clearly and conspicuously disclose that the enhanced resolution was available only on limited programming.
BBB’s National Advertising DivisionThe NAD of the Council of Better Business Bureaus offers alternative dispute resolution services for advertisers. Although the goal of the NAD is to resolve advertising disputes quickly (within 60 days) and at less cost than litigation typically entails, the NAD has no authority to award monetary damages to those who claim to have been harmed by false or misleading advertising, and compliance with NAD decisions is voluntary. However, if an advertiser refuses to comply with an NAD decision, NAD may elect to refer the advertiser to an appropriate regulatory agency. NAD decisions are monitored by both national advertisers and by the advertising industry.
Advertising substantiationComcast’s decision to pursue its claims before the NAD — rather than federal court — may have been strategic. It is not clear that the mere lack of substantiation for DirectTV’s advertising claims would have been enough to find the company liable in a federal lawsuit.
The Federal Trade Commission has long required that advertisers have a reasonable basis (i.e. substantiation) for their advertising claims before they are disseminated. Thus, when an ad contains an express reference to...
