Cover Your Eyes: NAD Recommends Pepper Spray Discontinue Claims

Advertising Law

The National Advertising Division (NAD) has recommended that an advertiser discontinue performance claims for its pepper spray in a challenge brought by a competitor.

On its website and product packaging, Skyline USA promoted its Guard Dog pepper spray as the “hottest” on the market, capable of 25 bursts that can go the “furthest” and that contain “invisible UV dye for assailant verification days after use.”

Competitor SABRE challenged the performance claims, and the NAD recommended that the advertiser discontinue all of them.

Although Skyline told the self-regulatory body that the “hottest” claim was puffery, the NAD said that both parties provided measurements of the heat level of their pepper sprays, which made the claim measurable and therefore not puffery.

When considering the testing submitted by the advertiser, the NAD noted that it was not conducted against all or even a significant portion of the market, therefore the claim was unsubstantiated. Further, the evidence demonstrated that the concentration of pepper spray varies by batch because of differences in the peppers. The resulting variability of heat in pepper sprays requires a variety of samples and batches to demonstrate consistency in the product, the NAD said—which the advertiser lacked.

The only evidence submitted in support of the UV dye claims was a video of an unidentified person spraying the pepper spray on his/her own person and shining a UV light on the area immediately after spraying. The advertiser submitted no evidence in support of the claim that its pepper spray is capable of 25 bursts. With the advertising offering no evidence to support the challenged claims, the NAD recommended both be discontinued.

Turning to the distance claims, the NAD emphasized that Skyline’s claim that the product can go the “furthest” and “shoots 16 feet” was a “crucial performance claim” in support of the safety product.

However, the self-regulatory body again found several problems with the product testing submitted by the advertiser, from an insufficient number of product samples to the failure to test the product outdoors.

“Although the testing demonstrated that some drops of pepper spray reached a distance of 16 feet, there was no analysis of whether a quantity of pepper spray sufficient to deter an assailant would reach that distance—for example, the testing did not show that the pepper spray would reach an assailant’s face at 16 feet,” the NAD wrote.

A disclaimer on the back of the packaging stating “This product generally has a range of up to 10-16 feet, but can be altered by wind and other conditions” did not save the claim. A disclosure cannot be used to contradict the main claim, the NAD said, and even if the disclosure were proper, it was not clear and conspicuous.

To read the NAD’s press release about the decision, click here.

Why it matters: The NAD emphasized that competent and reliable evidence is required to back up safety-related claims such as those made for the pepper spray, and that advertisers should avoid overstatement in advertising. The decision also reminds advertisers about the importance of proper testing, including sampling a sufficient quantity of products and diversity of batches to ensure that the results will be representative of the products purchased by consumers on the open market.