No sooner did I publish my last blog post about consumer relevance, then I saw a new Decision from NAD addressing many of the same types of issues, this time in the context of food for babies rather than for pets. Like the Petco case, this case involves claims that - though certainly consumer relevant -- both exceeded the advertiser's substantiation and unduly denigrated unnamed competitors. (I should note, though, that Petco's monadic claims fared better than this advertiser's, as will be clear from the description below.)
The new Decision (#6368) involves advertising for Little Spoon Baby Food, challenged by Plum Organics, a brand owned by Campbell Soup Company. The advertising included claims that Little Spoon's products are fresh, and also included statements like "Did you know that baby food in jars and pouches is typically older than your baby? (Gross right?!)" and "Baby food on grocery shelves is processed so heavily that it can last for years, and, as a result, has little nutritional value by the time it gets to your baby's belly." So, not only did the advertiser tout the quality of its own products, but took aim at competitors'.
NAD's findings about the advertiser's use of "fresh" were guided by applicable FDA regulations; accordingly, NAD found that processed food cannot be characterized as "fresh." Although Little Spoon argued that the processing it uses, High Pressure Processing (HPP), is "gentle," NAD found that even gentle processing is processing nonetheless and that use of HPP "does not fall within a reasonable consumer's expectation of "'fresh.'" Therefore, NAD recommended that the advertiser discontinue its "fresh" claims, a recommendation that Little Spoon did not agree to follow.
NAD also took issue with the advertiser's claims about that other baby food on grocery store shelves, finding that those claims implied that the long shelf-life of store-bought baby food makes it unsafe, unhealthy or otherwise unsuitable for consumption, claims for which the advertiser had inadequate support. And while NAD recognized that "an advertiser has a right to openly compare the ingredients in its product to competitor product ingredients, and to share factual information about these ingredients.," it cannot falsely denigrate its competitors. Accordingly, NAD recommended that Little Spoon discontinue the challenged comparative advertising.
As Little Spoon did not agree to abide by NAD's recommendations about the use of "fresh" to describe its products, NAD referred the claims to the FTC and FDA for further review. Stay tuned for the next installment.
Originally Published 30 May 2020
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