NAD Nullifies Nano-Tex Green Claims

Posted by | February 16, 2011 | General | No Comments

On February 8, the National Advertising Division (NAD) of the Council of Better Business Bureaus made a recommendation that Applied Textiles (Allied) and Nano-Tex cease a wide range of advertising claims used on three different Nano-Tex fabric coating products.  Applied manufactures fabrics that are treated with Nano-Tex coatings, and a competitor named Crypton challenged many of the claims Allied and Nano-Tex made in relation to 3 three of these products.

NAD reviewed the Nano-Tex print and internet advertising claims that the treated fabric was “compliant with,” “certified,” or “approved” by the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA) and the Consumer Products Safety Commission (CPSC).  It also reviewed claims that Nano-Tex products are “virtually chemical free,” and that challenger Crypton’s products are “not recyclable” and “contain harsh chemicals.”

Based on its review of the evidence, NAD recommended that Nano-Tex cease claiming that the Nano-Tex + BioAM product is “EPA Approved” or “EPA Registered.”  It also recommended discontinuance of claims that convey that the products are OSHA or CSPC certified or meet the Okeo-Tex Standard 100 environmental standards (a testing and certification program that looks for harmful substances in textiles and issues certificates annually).

Applied Textiles actually has its own independent lab.  That’s right, Allied owns an independent lab.  Hmmmmm.  Textile Testing is “Allied Textiles’ Applied Textiles full service, independent test laboratory that provides exceptional service for textile testing.” (!)  I find it odd that any lab owned by a corporation can be considered “independent.”  I find it odder still that Textile Testing is capitalized as if it’s a brand or a proper noun.  It must be the later, since textile testing is generic, thus incapable of becoming a mark.  But, I digress.

Textile Testing appears to test for functionality, like colorfastness, flammability, repellency and resistance, rather than for harmful chemicals like the Okeo-Tex standards that NAD told Nano-Tex to cease claiming to have met.  NAD also recommended that Applied Textiles no longer claim that its products meet environmental standards established by McDonough-Braungart Design Chemistry (MBDC), owner of the CRADLE TO CRADLE certification.

NAD not only recommends that the advertiser/defendants amend claims about their own products, but it also makes recommendations about the claims advertisers make about their competitor’s products.  In this case, NAD recommended that Applied discontinue several claims about Crypton’s products.

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The challenger’s products are not “recyclable;”

The challenger recommends “special detergents” and “no bleach solutions” to clean its fabrics;

The challenger’s fabrics do not have an available durability score from Wyzenbeek durability testing;

That the challenger’s fabrics cost five times as much as Nano-Tex and three times the cost of Nano-Tex with Durablock.

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According to the NAD news release, Applied Textiles also had a “Partial Compendium” on its site, which  listed seventy-seven types of bacteria, fungi, and algae, which it repeatedly claimed the Nano-Tex + BioAM product can ” kill in a laboratory setting because killing or controlling microorganisms is “relatively easy.”  This claim too Nano-Tex was asked to discontinue.  I wanted to know more about this, so I looked on the Nano-Tex and Allied websites and also conducted a Google search specifically for Allied Textiles Partial Compendium and could not find the document (results for it dead end in errors), so I presume Allied already complied with this NAD recommendation.

According to the NAD press release:

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Applied Textiles, in its advertiser’s statement, said that while the company “disagrees with many of the NAD’s recommendations, we absolutely support the self-regulatory process and greatly appreciate the NAD’s time and effort they put into their decision.  Accordingly, we will take into consideration the NAD’s recommendations for all future advertisements and print documents.”

Nano-Tex, in its advertiser’s statement, said the company “agrees to comply with the NAD’s recommendations to modify its statements concerning OSHA and CSPC compliance and eliminate references to its product being Okeo-Tex ‘compliant.’  Nano-Tex will take the NAD’s recommendations into account in future advertising.

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Beware thy competitors!  When making advertising claims about your competitors, those claims better be true and you better be able to prove it.  You may not think your competitors are paying attention, but they will once you make advertising claims (true or false) about them, and — as this case demonstrates — probably not just to those claims, but all of those you make.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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