Kramer Levin Successfully Represents The Procter & Gamble Company in Challenge Before the National Advertising Division

On behalf of its client, The Procter & Gamble Company (P&G), maker of Pampers® brand disposable diapers, Kramer Levin successfully challenged at the National Advertising Division (NAD) certain advertising by Kimberly-Clark Global Sales LLC (K-C), in which K-C claimed that its competing diaper product, Huggies® Little Snugglers, offers “unbeatable skin care” as compared to Pampers brand products and “draws more mess away than Pampers Swaddlers.” NAD recommended discontinuation of K-C’s claim on its product packaging that Huggies Little Snugglers provide “unbeatable skin care” versus Pampers brand diapers, finding that K-C had no reasonable basis for this “unsurpassed” claim, given that K-C lacked “any objective data on many of the key performance attributes that consumers associate with ‘skin care’ in the context of diaper products.” With respect to the “draws more mess away” claim, NAD agreed with P&G that K-C had “failed to provide a reasonable basis for one of the messages reasonably conveyed by the challenged [television] commercial – that Huggies Little Snugglers have superior urine performance.” In recommending discontinuation of K-C’s commercial, NAD further “determined that the conditions depicted in the advertiser’s product demonstration [were] not consumer relevant.” NAD also concluded that K-C can make a “draws more mess away” claim only if its advertising “clearly communicates to consumers that the claim is limited to breastfed infants, wearing diaper sizes [newborn], 1, 2 or 3.” The Kramer Levin team included litigation partner Norman C. Simon and associate Seth F. Schinfeld.