The claims at issue were challenged by Zone Labs, Inc., a competing manufacturer of edible fish oil supplements. The advertising, on the advertiser’s website and in print, including the following claims:
“Nordic Naturals adheres to and exceeds the stringent Norwegian Medicinal Standard (NMS) and the European Pharmacopoeia Standard (EPS) as well as the voluntary standards set by the Council for Responsible Nutrition (CRN) and the Global Organization for EPA and DHA Omega-3 (GOED) for all of our products.”
“Nordic Naturals’ patented, oxygen-free manufacturing process delivers peroxide values (indicators of freshness) down to absolute 0.0mEq/kg, with an average of 0.75 mEq/kg or approximately 14 times below the Norwegian Medicinal Standard and European Pharmacopoeia Standard limits.”
“Nordic Naturals has perfected fish oils by offering great taste, purity, and unmatched freshness levels.”
“Our leading edge refining techniques reduces any potential toxins to undetectable amounts.”
“Our products consistently test far below acceptable national and international pharmaceutical limits.”
“The Norwegian Medicinal Standard for PCB’s and HCB’s is 3.0 ppt, while Nordic Naturals is testing down to 0.4 ppt without detection.”
The case presented NAD with issues that included the correct time to test the fish oil to accurately determine its purity and freshness, and related to that, whether the addition of a certain lemon flavoring to the fish oil reacts with and causes the fish oil to oxidize, or skews the test results.
(Full text of decision available to media upon request.)
NAD noted in its decision that the advertiser tests its fish oil in its raw form, before the oil is flavored or encapsulated. Further, the advertiser maintained that testing the oil in its raw form is the industry-accepted method as the addition of flavoring skews tests results. The challenger argued that standards call for testing of the finished product. The challenger contended flavoring does not simply skew the test results, but instead contributes to “tainting” the product by causing the fish oil to oxidize. As a result, the challenger argued, the product, in its finished form, is neither pure nor fresh, as claimed.
NAD looked to industry standards for guidance as to when it is appropriate to test fish oil for its freshness and purity. Both parties cited a monograph prepared by the Global Organization for EPA and DHA Omega-3 (GOED) as an industry standard for evaluating fish oil, and submitted the results of testing conducted by the standards of the American Oil Chemists’ Society.
Following its review of the evidence in the record, NAD determined that the GOED monograph was intended to test for the purity of fish oil in its raw form and questioned the relevance of such test results when used to form the basis for advertising claims made to consumers for finished, encapsulated fish oil supplements. NAD concluded that the results of GOED testing on raw fish oil cannot support advertising claims made for a finished fish-oil product—particularly products that are combined with other ingredients, such as flavorings.
NAD recommended that the advertiser discontinue claims related to its manufacturing process, and its adherence to the Norwegian Medicinal Standard, European Pharmacopoeia Standard, the voluntary standards set by the Council for Responsible Nutrition and the GOED.
NAD recommended that the advertiser discontinue the comparative claim stating that, “Nordic Naturals has perfected fish oils by offering great taste, purity, and unmatched freshness levels,” since the advertiser did not perform comparative testing.
NAD found that while the advertiser can tout the benefits of its refining techniques, it recommended that the advertiser discontinue its claim that “Our leading edge refining techniques reduces any potential toxins to undetectable amounts.”
NAD noted that the advertiser permanently discontinued the claim that, “The Norwegian Medicinal Standard for PCB’s and HCB’s is 3.0 ppt, while Nordic Naturals is testing down to 0.4 ppt without detection,” prior to the date of Zone’s challenge. NAD closed it inquiry as it relates to that claim.
Nordic Naturals, in its advertiser’s statement, said that while the company “does not concede that any of its advertising claims are false or misleading, it accepts the NAD’s decision in its entirety.”