NATIONAL ADVERTISING REVIEW BOARD
Published on: Mar 3, 2016
Transcripts - NATIONAL ADVERTISING REVIEW BOARD
NATIONAL ADVERTISING REVIEW BOARD
70 West 36th Street, New York, NY 10018
NARB PANEL # 150
April 16, 2009
Appeal of the NAD Final Decision Regarding Advertising for
BP Lubricants' Castrol GTX Brand Motor Oil
Dr. Jan LeBlanc Wicks (chair)
Professor & Graduate Coordinator
University of Arkansas
The Gate Worldwide
Senior Director, Brand & Marketing Communications
Representing the National Advertising Review Board
Alan Cohen, General Counsel
Bruce Hopewell, Director
Representing the National Advertising Review Council
Lee Peeler, President
Representing National Advertising Division
Andrea Levine, Director
David Mallen, Assistant Director
Kathleen Dunnigan, Attorney
Representing Pennzoil-Quaker State Company
Nancy Felsten, Esq., Davis Wright Tremaine LLP
Christopher Robinson, Esq. Davis Wright Tremaine LLP
Carolyn Sellers, Senior Legal Counsel, Shell Oil Company
Selda Gunsel, Manager, Lubricants Technology Group - U.S. Shell Oil Company US
Robert Sutherland, Principal Scientist, Consumer Lubricants Shell Oil Company US
Lewis Clayton, Partner, Paul, Weiss, Rifkind, Wharton and Garrison LLP
Ronald Gizzi, Senior Attorney, BP Lubricants USA, Inc.
Gillian Sinnott, Associate, Paul, Weiss, Rifkind, Wharton and Garrison LLP
Richard Tittel, Director, Technology Strategy and Product Claim Support, BP Lubricants USA, Inc.
phone: 866.334.6272 • fax: 212.705-0136
Administered for the National Advertising Review Council (NARC) by the Council of Better Business Bureaus (CBBB).
REPORT OF NARB PANEL 150
April 16, 2009
Appeal of NAD Final Decision
Regarding Advertising for Castrol GTX Motor Oil
Advertising claims by BP America, Inc. (“BP America”) for its Castrol GTX motor oil were
challenged by Pennzoil-Quaker State Company (“Pennzoil”), manufacturer of competing motor oils.
The challenged advertisements included television, website and brochure advertising that made the
following express claims for Castrol GTX motor oil:
• “Superior Sludge Protection. 57% better than the leading 5W-30. Tests prove it.”
• “Superior Sludge Protection Among Leading Oils* [*In 5W-30 and 10W-30 grades].”
• “Tests prove GTX 5W-30 provides superior sludge protection. 57% better than the leading
5W-30 competitive oil in the M271 sludge test.”
• “[O]ur new formulation in 5W-40 and 10W-30 grades is so powerful that it passed the
industry’s toughest sludge standard.”
Pennzoil also challenged the following claims that it argued were implied by the challenged
• Consumers who use Pennzoil motor oil will suffer significant sludge build-up.
• Castrol GTX will provide longer engine life than will Pennzoil motor oil.
• Castrol GTX will prevent engine failure or catastrophic damage better than Pennzoil motor
NAD found that the information submitted by BP America did not provide a reasonable basis to
support its unqualified claims that Castrol GTX provided “superior sludge protection” and was
“57% better” than the leading competitive oil. NAD recommended that BP America discontinue
these claims in television advertising, although it permitted BP America to make these claims with
appropriate qualifications on websites and in technical bulletins. BP America appealed the
recommendation that it discontinue these claims in television advertising, and Pennzoil filed a cross-
appeal that asks this panel to recommend that the challenged claims not be made, even with
qualification, on websites and in technical bulletins.
NAD also found that BP America did not provide a reasonable basis to support its claim that
Castrol GTX passed “the industry’s toughest sludge standard,” and BP America appealed that
NAD further found that the challenged advertisements reasonably implied that Castrol, because of
its superior sludge protection capacity, can provide longer engine life than its competitors. NAD
concluded that its recommended modifications to the express claims would be sufficient to eliminate
any unsupported implied claims.
Findings and Conclusions
“Superior Sludge Protection” and “57% better” claims
In substantiation of its superior sludge protection and “57% better” claims, BP America relied on
the results of two tests conducted under a proprietary Mercedes-Benz protocol known as the M271.
The M271 test was run two times on different dates – once on Castrol GTX, and once on a
competitive Pennzoil product. The procedures and protocols for the M271 test are proprietary to
Mercedes-Benz and not publicly available. The M271 test is not part of the battery of tests required
under either North American or European industry oil certification standards, although it is required
by Mercedes-Benz as one of the tests required in order for oil to be certified by Mercedes-Benz for
use in its engines.1
The panel agrees with NAD that BP America had the burden to demonstrate that the testing offered
in support of its claims (1) was based on sound methodology, (2) was properly conducted, and (3)
produced meaningful, consumer-relevant results. The panel also agrees with NAD that BP America
failed to meet this burden with respect to each of these factors.
The information submitted by BP America did not demonstrate that the M271 test on which it relies
is an appropriate basis for comparative sludge protection claims. The test procedures and protocols
are not publicly available and thus NAD was not able to evaluate the test. In addition, there is no
published reference data with respect to the M271 test, no correlation to other tests, no field
correlation, no published repeatability or reproducibility statistics, and no way to evaluate the
statistical significance of the test results. It is significant that the test results were reported in a
document that clearly stated “No claims can be made based on this document.”
BP America did not establish that the tests on which it relies on were properly conducted. The
submitted test results show that the tests were conducted on different dates and on different test
engines, and it is not clear from the information submitted whether the same fuel was used for both
tests. In addition, the test of the Pennzoil product was aborted and there is at least a reasonable
argument as to the possibility that the test was aborted due to a problem unrelated to what was
The information submitted by BP America additionally did not establish that the tests were
consumer relevant in North America, which is where the challenged advertising was directed, or
relevant to North American vehicles such as the one depicted in the advertisement. The record
included conflicting expert opinions as to consumer relevancy. An email from Mercedes-Benz said
1 Industry certification of motor oils in North America is issued through the American Petroleum Institute under
Engine Oil Licensing and Certification System standards set with input from several groups; these standards primarily
rely on a Sequence VG test to measure sludge protection. Certification in Europe is issued by the Association of
European Automobile Constructors, which uses both the Sequence VG test and a second test (M111) to measure sludge
protection. In addition to these certifications, a number of automobile manufacturers have developed proprietary tests
that are required in order for oil to be certified for use in those manufacturers’ vehicles. The M271 test is used by
Mercedes-Benz as one of several tests required for oils to be certified by Mercedes-Benz.
that the M271 test is “more reliable” than a previous test run on an engine no longer in production,
“more relevant for [Mercedes],” and “better correlated” to current Mercedes-Benz engines.
However, the M271 test has not been accepted by either North American or European industry
certification organizations, and BP America did not establish that the M271 test produces
meaningful, consumer-relevant results for the overwhelming majority of vehicles driven in North
NAD recommended that BP America be permitted to advertise Castrol’s superiority under the
M271 test in website and technical bulletins where it could qualify the claims by making it clear that
the testing related only to performance in Mercedes-Benz vehicles under proprietary Mercedes-Benz
testing. We support NAD’s view that consumers are best served when they have access to truthful
comparative information. However, Castrol GTX is not approved for use in Mercedes vehicles, and
the panel believes that the qualification suggested by NAD would falsely imply that Castrol GTX
was approved for Mercedes vehicles. In addition, the panel believes that deficiencies in the
substantiation submitted by BP America with respect to the M271 test are sufficiently severe so that
the test results should not be used to support any superiority claims.
For the above reasons, the panel has determined that the M271 test results submitted in this case do
not substantiate the superior performance claims made by Castrol GTX, even with qualification, and
thus the panel recommends that they be discontinued in all media including websites and brochures.
Industry’s Toughest Sludge Standard
The panel agrees with NAD’s recommendation that BP America discontinue its claim that Castrol
GTX passed the “industry’s toughest sludge standard.” BP America argued that this claim was based
on Castrol GTX passing the M111 sludge protection test. However, the record does not establish
that the M111 is the “industry’s toughest sludge standard.” In addition to the problem of relying on
a European industry standard in advertising directed to North American consumers, BP America
did not submit evidence to establish that the M111 was “tougher” than all other industry sludge
BP America argues that, because Pennzoil advertises that one of its oils meets Mercedes-Benz specifications that rely
in part on the M271 test, Pennzoil should not be permitted to question BP America’s reliance on the M271 test. The
panel agrees with NAD that Pennzoil’s truthful advertisement that its oil meets Mercedes-Benz specifications has no
relevance to the issue of whether the M271 test provides a reasonable basis for BP America’s superiority claims.
BP America argued that it was not sufficiently put on notice that it needed to substantiate its claim that Castrol GTX
passed the “industry’s toughest sludge standard.” However, this was one of the challenged claims and NAD’s opening
letter to BP America clearly asked for such substantiation. While there was some confusion on the part of Pennzoil as to
what test BP America was referring to as the “industry’s toughest,” it was incumbent on BP America to respond by
identifying the test it was relying on and providing substantiation to show that it was the industry’s “toughest.” Instead,
BP America initially responded by implying that the “toughest” industry standard was the M271 test, which it’s expert
characterized as an “improvement” over the M111 test used by European industry certification organizations. In its final
submission, however, BP America reversed course and argued that the “industry’s toughest sludge standard” was
actually the M111 test used in Europe. In order for the NAD self-regulatory process to work efficiently, advertisers
must initially respond to challenges by providing adequate substantiation for the challenged claims. An advertiser should
not wait until its final submission to provide substantiation. In this case, BP America did not even identify the
“toughest” standard referenced in its advertisements until its final submission. Because of this, NAD appropriately
permitted Pennzoil to submit additional evidence with respect to the issues raised for the first time by BP America’s final
While the panel shares NAD’s concern about the validity of the consumer perception survey offered
by BP America, it is recommending discontinuance of the express claims and does not need to
resolve any questions relating to what is implied by those express claims.
The panel recommends that BP America discontinue its “superior sludge protection” and “57%
better” claims, or any other sludge superiority claims based on the submitted M271 tests.
The panel also recommends that BP America discontinue its claims that Castrol GTX passed the
“industry’s toughest sludge standard.”
Given the amount of time that has passed since the initiation of this challenge, as well as the
significant deficiencies in the substantiation offered in support of the claims, the panel hopes that
BP America will promptly discontinue the challenged advertising claims in all media.
BP Lubricants appreciates the NARB Panel’s work on this appeal. While we respectfully disagree
with the Panel’s conclusions, as a strong supporter of the self-regulatory process, BP Lubricants will
withdraw the challenged advertising.
We believe that the record before the NAD and the Panel established that sludge should be an
important concern for consumers, and that car makers and many others in our industry believe that
minimum standards for sludge protection don’t go far enough. Accordingly, BP Lubricants has
formulated its Castrol motor oil products to include advanced sludge protection. We are
disappointed that the Panel felt that the substantiation we placed in the record in this matter was
insufficient, and that we did not adequately anticipate the need to provide extensive substantiation
concerning the characteristics and relevance of the Mercedes Benz M111 test, which is part of the
European ACEA industry standard. We had believed that issue was not in contention.
BP Lubricants will continue its efforts to provide consumers with high quality products that perform
beyond minimum standards, and make renewed efforts to advertise those benefits clearly and
carefully marshal substantiation of those claims.