The National Advertising Division (NAD) has recommended that Aldi, Inc. discontinue advertising based on a “market basket” comparison that claims consumers could save more than 50 percent by buying Aldi brands instead of name-brand products at other grocery chains. Texas-based HEB Grocery Co. first challenged print ads published in Houston then later added a challenge to print advertising outside Texas as well as in Facebook and YouTube ads. HEB challenged whether the ads “adequately informed the consumer of the basis of comparison and whether the advertiser’s broad savings claims were supported.” NAD found that where percentage savings claims did disclose the basis of comparison, the “disclosures were vague and nonspecific” and did not clarify that the achieving the advertised savings would require switching from name brands to Aldi’s house brands. Further, NAD found insufficient evidence to support Aldi’s claims that consumers would “always” save up to 50 percent. Aldi will…
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Ferrero SpA, maker of Nutella®, has reportedly won a dispute in the Brussels Court of Appeal over a rival’s advertising that claimed its similar product was healthier because it does not contain palm oil. Ferrero sued Belgium’s Delhaize Group after the “Choco” maker launched an ad campaign claiming its “certified without palm oil” spread was healthier and environmentally sustainable. The court held Delhaize made illegal and unproven comparisons in its environmental and health claims about palm oil and ordered the company to end the campaign. The court also barred Delhaize’s use of the word “chocolate” on Choco labels because the product does not contain chocolate. See 7 Sur 7, June 2, 2017. Issue 637
A federal court has denied class certification to plaintiffs in multidistrict litigation involving false advertising claims for 5-Hour Energy® drinks, finding they failed to allege that common issues predominate over individual ones, including a common definition of “energy.” In re 5-Hour Energy Mktg. and Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered June 7, 2017). The plaintiffs could not establish the definition of “energy,” the court found, because they defined it as “caloric energy” based on U.S. Food and Drug Administration dietary-supplement standards but did not show that consumers interpret “energy” the same way. In addition, plaintiffs in California, Missouri and New Mexico proposed a theory of liability based on underfilling, alleging that the product provided only 3.7 minutes of caloric energy instead of five hours, while plaintiffs in other states did not argue for the theory. Issue 637
The U.K. Advertising Standards Authority (ASA) upheld a complaint arguing an advertisement for Arla Foods’ organic milk was misleading because it included the statements “Good for the land” and “helping support a more sustainable future.” ASA reviewed evidence the company provided about its organic farming methods but concluded that the dairy had failed to substantiate its claim that organic milk production has an “overall positive impact on the environment, taking into account its full life cycle.” Accordingly, the agency ruled that the ad was misleading and told Arla not to make environmental claims about their products unless they could be substantiated. Issue 637
Responding to a challenge from Ragù® maker Mizkan Americas Inc., the National Advertising Division (NAD) has recommended that Campbell Soup Co. change broadcast ads featuring toddlers as “life-long pasta experts,” finding the ads are “puffery” and do not contain “a claim about the preferences of toddlers.” The ads showed a split-screen with one child eating and one child refusing the food. Campbell Soup said the claim was substantiated by a “statistically significant” taste test conducted with subjects aged six or older comparing Prego® and Ragù® sauces, but NAD said the ads did not contain a provable claim that young children prefer one sauce over another. Issue 637
Even if Kauai Coffee pods are “certified 100% compostable,” as its ads claim, the National Advertising Division (NAD) says the company does not make clear to consumers that the pods can only be composted in industrial facilities rather than backyard compost piles. NAD has recommended that Kauai discontinue existing print and website advertising or modify it to “clearly and conspicuously disclose” that the single-serve pods are only compostable in certain facilities. The ad board confirmed that the pods have been certified by the Biodegradable Products Institute, the official agency for recognition of compostable products, but noted that the lack of disclosure may be a violation of the Federal Trade Commission’s Green Guides. Issue 635
An apparent glitch in a Peppes Pizza advertisement in Oslo, Norway, reportedly revealed to passersby that the ad determined whether to show pizza or salad to its audience based on gender as perceived by facial-recognition software. The digital billboard used a hidden camera to scan faces of the audience and showed images of sausage pizza for men and salads for women. The glitch revealed that the software scanned for the gender of the viewer, the age segment, the length of time the viewer looked at the ad, and whether the viewer was wearing glasses or smiling. After the glitch gained attention as a purported breach of privacy in Norwegian media, the hidden camera was reportedly removed. See The Outline, May 12, 2017. Issue 635
A consumer has filed a lawsuit alleging Mondelez International misleadingly markets Ginger Snaps cookies as healthy. Winn v. Mondelez Int’l, No. 17-2524 (N.D. Cal, removed to federal court May 3, 2017). The proposed class action claims that Ginger Snaps packages were marketed with the phrases “Made With Real Ginger and Molasses” and “Sensible Solutions,” leading consumers to believe the cookies were healthy despite allegedly containing “dangerous levels” of partially hydrogenated oils and high-fructose corn syrup. For alleged violations of California’s consumer protection laws, the plaintiff seeks class certification, damages, restitution, injunctive relief and attorney’s fees. Issue 634
A Maryland consumer alleges that when she used coupons offering a free sandwich with the purchase of an initial sandwich, Burger King locations in Maryland, Virginia, the District of Columbia and Florida charged her more than they would have if she had purchased sandwiches without the coupons. Anderson v. Burger King, No. 17-1204 (D. Md., filed May 2, 2017). The complaint asserts that Burger King’s coupon promotion offers a “free” sausage, egg and cheese breakfast “Croissan’wich” to customers who buy one Croissan’wich at the regular price. The plaintiff claims she went to a Maryland location, presented a coupon and was charged $3.19 for the two sandwiches she received. She later purchased a single sandwich and was charged only $2.16, the complaint alleges. She found similar results at locations in (i) the District of Columbia, where the two coupon sandwiches cost $4.61 and the single sandwich cost $1; (ii) Virginia, where…
After reviewing a challenge by the maker of Gerber baby foods, the National Advertising Division (NAD) has recommended that Beech-Nut Nutrition discontinue several advertising claims but rejected complaints that Beech-Nut’s ads implied its baby foods are fresh. NAD warned Beech-Nut against use of the term “coldpuree” unless it “conspicuously” explains that foods are cooked after they are pureed cold. It also recommended that Beech-Nut stop making unsupported claims that “glass is the ultimate in sustainability” and that “glass is nature’s safest container.” Beech-Nut challenged NAD’s jurisdiction, arguing that most of the ads are no longer used, but NAD rejected the challenge and noted that the challenged claims continued to appear on Beech-Nut’s website, in a YouTube video and on product packaging. Issue 632
