NARB Offers Guidance on Product Demonstrations | Kelley Drye & Warren LLP
James Hardie Building Products makes fiber cement home siding. The company produced a video demonstration that compared the combustibility of its siding to various competing products when exposed to a blowtorch. At the beginning of the demonstration, an employee explains that each of the products was tested under identical conditions. After ten minutes of exposure to the flame, only the structure with the Hardie siding is left standing. A fire instructor states that he plans to re-side his house with that siding.
Louisiana-Pacific challenged the demonstration before NAD. The company argued that even if the video accurately demonstrated how the products performed under those circumstances, consumers are likely to take away a broader message about how the products would perform in real world fire conditions – something Hardie couldn’t substantiate. Hardie argued that consumers wouldn’t take away that message, pointing to a disclosure explaining that the video “is not intended to predict the performance, when exposed to fire, of any specific wall design or siding material installation on your home.”
NAD agreed with Louisiana-Pacific. On appeal the NARB panel determined “the advertiser’s flammability comparison test is a valid demonstration of the various sidings’ combustibility when exposed to a blowtorch flame.” However, like NAD, the panel was “troubled by the additional messages conveyed to consumers through the advertiser’s product demonstration video.” Regardless of the disclosure, the panel thought that “reasonable consumers would take away a message that the advertiser’s fiber cement siding will protect a consumer’s home from fire damage caused by external fires.”
Although the video conveyed “the substantiated message that, under the depicted circumstances, the advertiser’s product does not combust, burn, or spread flames while its competitor’s does,” the video “also overstates the benefits of the siding by implying the unsupported message that the siding will necessarily reduce the risk of fire damage to a home from external fires.” Accordingly, the panel recommended that Hardie stop using the video or make various changes to more clearly communicate that the video doesn’t demonstrate what may happen under real fire situations.
The decisions are interesting because it looks like Hardie took great care to ensure that all products were tested under identical conditions and that it included a fairly prominent disclosure explaining the limits of the demonstration. Nevertheless – even though what was on screen may have been accurate – NAD and NARB were concerned that such a powerful demonstration would leave a stronger message in the minds of viewers, particularly after a fire instructor said he planed to use Hardie’s siding.
The decisions are a reminder that even if what you show on screen is accurate, you need to be careful to ensure that you don’t convey a broader message than you can support.
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