• NAD Rules on Food Product (and Other) Ads
  • March 17, 2006
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • Three of the eight decisions handed down in February by the industry self-regulatory group, the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc., dealt with food marketing issues.

    It is yet another reminder of the efforts the industry is making to respond to public health concerns and food advertising issues. Not all the news was bad for those who participated in NAD reviews.

    The Gerber Products Company successfully substantiated its advertising claims for the company's "Gerber Finger Foods: Fruit & Veggie Puffs" food products for toddlers. The ads for the products contained the express claim, "Try all five varieties, each one made with real fruits and vegetables."

    NAD expressed concern that the ads also implied that the products were made with either 100 percent or "primarily" real fruits and vegetables, when in fact the primary ingredients were flour and sugar.

    Advertisers that claim a food product is made with real fruits and vegetables should "take care not to overstate, directly or by implication, the actual fruit or vegetable content in the food," the NAD cautioned.

    Nevertheless, in the Gerber case, the NAD concluded that the description on the packaging of "Puffed Grains with Real Fruit" and the fact that no fruits or vegetables were depicted would lead consumers to understand that the puffs were composed mainly of grains and flavored with fruits and vegetables.

    Soda and Juice

    Dr. Pepper/7-Up was not so successful in its defense of 7-Up with Calcium, which was marketed via the claim that: "[w]ith real fruit juice, 10% of your daily calcium and only 10 calories in every 8 oz. serving, it tastes so good you can feel it in your bones."

    The NAD concluded that the language and depictions of "cascading fruit" created an implied claim that the beverage contained a significant amount of juice. The organization noted that the product contained 5 percent fruit juice, and is formulated with apple juice from concentrate.

    The NAD recommended that Dr. Pepper/7-Up modify its advertising to disclose the amount and source of the fruit juice contained in the product.

    The company disagreed with NAD's conclusion but agreed to consider its findings.

    Bittersweet Conclusion

    Swiss Research Inc., the maker of Shugr Sweetener, also dissented with the NAD's conclusions regarding its ads. Competitor Merisant Company, the maker of Equal no calorie sweetener, had challenged claims such as:

    • "Shugr Natural Sweetener"
    • "The New Natural Sweetener"
    • "The natural sweetener that you can enjoy and not have to worry about placing your health in jeopardy"
    • "Shugr is the world's first sweetener that is Natural . . . "
    • "Shugr does not have an aftertaste like many synthetic sweeteners"

    In its decision, the NAD noted that "Shugr contains sucralose, an undisputedly artificial sweetener."

    The NAD recommended that the advertiser discontinue its "natural" and "natural sweetener" claims on product labeling, and in print and Internet advertising claims, and avoid claiming, directly or by implication, that Shugr's sweetness comes from "natural ingredients" or that the product is less artificial than competing products.

    Swiss Research stated that it was "extremely displeased" with NAD's conclusions.

    "SRI believes the statements on behalf of Shugr to be appropriate, truthful, and not misleading. However, in the interest of moving forward and putting this controversy to rest, SRI will abide by the decision of the NAD and withdraw the 'natural' claims made with respect to Shugr," the company said.

    Why This Matters: With growing emphasis around the world on health and food marketing issues, the industry is under tremendous pressure to police its members. Therefore, advertisers may be wise to play it safe and abide by industry self-regulatory organization's recommendations.