The claims at issue in JJVC’s challenge appeared in print advertisements, promotional materials and advertorial emails directed to eye care professionals, online videos directed to professionals and consumers and print advertisements directed at general consumers. They included:
- Air Optix Aqua lenses provide “superior surface deposit resistance.”
- Air Optix Aqua lenses possess “Unique Plasma Surface Technology for Superior Deposit Resistance.”
- “Acuvue OASYS contact lenses attract up to 31x more lipid deposits.”
- “Only Air Optix brand contact lenses have a unique surface technology that’s proven to … resist deposits better than other available two-week or monthly replacement SiHy lens.”
- Air Optix Aqua lenses “Resists Lipids & Deposits.”
- “Superior Surface with Moisture and Consistent Comfort.”
JJVC maintained that the testing on which Alcon based its superior surface deposition-resistance claims did not measure deposits on the contact lens surface and argued that JJVC’s own head-to-head clinical testing showed that Alcon’s “31x claim” was without clinical relevance. JJVC also contended that a “Deposits Card” designed for eye-care professionals, distorted the deposits “encountered with OASYS lens and exaggerates the purported superior surface properties of AOA lenses.”
Alcon asserted that the challenged claims for its AOA contact lenses were truthful and wholly substantiated by reliable studies and data and via multiple reputable scientific authorities and sources. This evidence, Alcon maintained, provides more than a reasonable basis for its claim that AOA has superior lipid deposit resistance compared to OASYS. According to Alcon, having established a reasonable basis for its claims, JJVC has failed in its burden to show either a material flaw in Alcon’s evidence, or more reliable evidence demonstrating a different result.
Following its review of the evidence presented by the advertiser and challenger, NAD determined that Alcon could not support the challenged claims and recommended that the claims at issue be discontinued. NAD noted that the advertiser had voluntarily discontinued distribution of the “Deposits Card,” but recommended the advertiser discontinue distribution of promotional materials containing exaggerated images.
Finally, NAD noted that nothing in its decision precluded Alcon from promoting that its Air Optix Aqua lenses possess “Unique Plasma Surface Technology,” or that Air Optix Aqua lenses “Resists Lipids & Deposits.” Further, NAD noted that nothing in its decision precludes the advertiser from claims – in a stand-alone context – that Air Optix Aqua lenses possess unique plasma surface technology that resists lipids and deposits, offering clear vision and consistent comfort.
Alcon took issue with NAD’s analysis of its evidence but said that despite “these disagreements, Alcon respects the self-regulatory process and will take NAD’s recommendations into account in future promotional materials.”