ADventures in Law

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It is too early to tell if we have a baby wipes war developing to compete with the diapers wars, but we certainly have had lots of activity this year involving the disposable cleanup cloths. An <a href="https://bbbprograms.org/media-center/newsroom/waterwipes-1-wipes-claims">earlier action</a> focused on the adequacy of the substantiation of a claim that WaterWipes were the “#1 wipe against the causes of diaper rash.” Do not fear, gentle reader, we will not be delving into the science behind diaper rash today (although for the curious, the earlier decision and the <a href="https://bbbprograms.org/media-center/dd/waterwipes-infant-cleansing-wipes">more recent decision</a> both have detailed discussions of the BaSICs, or Baby Skin Integrity Comparison Survey, including its adequacy as competent and reliable scientific evidence and its fit to the claims made).

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As an aside, you might be curious why WaterWipes was facing two challenges involving the same study so close in time. This happens rarely, but Kimberly-Clark initiated the first challenge, and Procter &amp; Gamble initiated the second. Because of the strict <a href="https://bbbnp-bbbp-stf-use1-01.s3.amazonaws.com/docs/default-source/bbb-national-programs/procedures/nad_narbprocedures_current.pdf">confidentiality rules at the National Advertising Division (NAD</a>) during the pendency of a challenge, occasionally there can be overlapping challenges against one company by two different competitors, and typically the challenges have at least some different issues raised, so the NAD considers both.

Today, we are focusing on our old friend “Trusted Medical Provider Recommended” claims. These take many forms, all with similar substantiation requirements, including Doctor Recommended, X Specialist Recommended, Pharmacist Recommended, etc. Today, we review a “Healthcare Providers Recommend” claim.

As the NAD has noted, these sorts of claims are very powerful to consumers. In the instance of first-time parents, they are a <a href="https://masandpas.com/sleep-deprivation-stories/">sleep-deprived</a>, stressed-out, vulnerable audience <a href="https://www.huffpost.com/entry/best-advice-new-first-time-parents_n_59ca701be4b0cdc77334e0c4">seeking any and all quality advice</a> about stuff for a baby. The general requirements for supporting such claims are:

- Survey the appropriate practitioners – chiropractors can’t opine on menopausal products.

- Make sure you ask first if the practitioner recommends the product category in the ordinary course of their practice, instead of starting with a potentially biased question like “Which of these products do you recommend?”

- It matters whether you survey about ingredients or specific brands, as how the questions are phrased will impact the possible claims.

- Of course, make sure your survey is sufficiently powered with statistically significant results.

Here, WaterWipes surveyed 409 professionals attending a women’s health, obstetric and neonatal nurses conference. The NAD found that while these were some of the healthcare practitioners who may talk about baby wipes with patients, lots of other professionals were missed, including baby doctors, nurse practitioners, etc. Therefore, the NAD recommended that the broader “95% of healthcare practitioners recommend” claim be discontinued. All is not lost, as there may be a more limited claim that can be salvaged. Of course, if the original claim was made on packaging, pivoting can still be a painful endeavor.

NAD Cleans Up ‘Doctor Recommended’ Claim for Baby Wipes