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by Randal Shaheen, Amy Ralph Mudge & George Langendorf!

 

Latest Lanham Act Case to Bring Down a National Ad Campaign -
by Randall K. Miller!

 

 

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BULLETIN #664

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SAMPLE ISSUE: Article #8:

NAD INVESTIGATIONS: RECENT HIGHLIGHTS

 

 

LATEST CASES

 

Advertisers cooperate with the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc., to resolve challenges to their national advertising. You should be aware of the latest NAD cases because of the helpful advertising compliance information found in these decisions. The following article contains representative examples of NAD cases in these three categories:

 

I. "GREEN" MARKETING CLAIMS–The use of "green" advertising claims is a growing phenomenon. Indeed, green advertising is certain to play an ever-increasing role in our society in the months and years ahead, as illustrated by this recent NAD case:

 

Dispoz-o. NAD recommended that this advertiser should discontinue certain environmental claims for its products (Dispoz-o is the maker of "Enviroware" plastic tableware.) However, NAD did find that the advertiser did provide reasonable support for certain claims.

 

NAD looked at advertising for "Enviroware" products after a challenge by Solo Cup Company, a competing maker of disposable tableware.

 

The claims at issue included the following claims, among others:

 

• "Enviroware is designed to interact with micro-organisms present in landfills, composters, and almost everywhere in nature including oceans, lakes and forests. These micro-organisms metabolize the molecular structure of the plastic, breaking it down into soil."
• "Enviroware is formulated to degrade in months when buried or discarded in a landfill"
• "Enviroware cutlery, straws, hinged containers, plates, bowls and trays are 100% biodegradable and come with a certificate of biodegradability."

 

In its decision, NAD said that the advertiser did not establish, by means of competent and reliable scientific evidence that its products will completely break down and return to nature within a reasonable short period of time after customary disposal.

 

So NAD recommended that these claims should be discontinued:

 

• "Enviroware is formulated to degrade in months when buried or discarded in a landfill"
• "Enviroware cutlery, straws, hinged containers, plates, bowls and trays are 100% biodegradable and come with a certificate of biodegradability."

 

In addition, NAD said that the evidence did not establish that the products are 100% degradable in landfill conditions and that a "certification" of a product or additive as biodegradable by a supplier is not a substitute for competent and reliable scientific evidence that an advertiser must possess in order to substantiate environmental claims in its marketing and advertising.

 

NAD also recommended that claims about the expected time frame of degradation should be significantly qualified to indicate the limited nature of the conditions tested.

 

NAD noted that on the basis of its testing, the advertiser did provide reasonable support for the claim that–

 

"Enviroware is designed to interact with micro-organisms present in landfills, composters, and almost everywhere in nature including oceans, lakes and forests. These microorganisms metabolize the molecular structure of the plastic, breaking it down into soil."

 

In its advertiser's statement, Dispoz-O said that the company accepts–

 

"NAD's decision and will discontinue the two advertising statements per your recommendation until such time that our actual products complete the clinical and/or on-site testing and we can make a qualified claim based on these tests in accordance with the parameters of the NAD decision."

 

(Dispoz-o, NAD Release, April 2, 2009.)

 

II. ADVERTISER ACCEPTS NAD DECISION; CHALLENGER IS SAID TO HAVE VIOLATED NAD PROCEDURES–In this second "green advertising" case, an advertiser recently decided to accept NAD's recommenda- tions that had been issued late last year. Perhaps of greater interest is what NAD had to say about the challenger's alleged dissemination of the decision to third parties made before the decision's public release by NAD. Here's what happened--

 

GP Plastics Corp. GP Plastics Corp. has now accepted NAD's recommendations issued in December 2008. GP Plastics Corp. is the maker of PolyGreen plastic bags.

 

NAD had recommended that the advertiser should modify or discontinue certain advertising claims for the product. GP Plastics' advertising had been challenged by Mexico Plastic Company, doing business as Continental Products (CP). CP is a competing provider of plastic bags for the newspaper industry.

 

In its advertiser's statement to NAD, GP Plastics said that the company "appreciates the NAD's recognition and understanding of the company's efforts to produce a cost-effective product with genuine environmental benefits but is disappointed that the NAD did not agree that the claims `100 percent oxo-biodegradable' and `completely recyclable' are substantiated. GP Plastics also regrets that the NAD failed to recognize that certain of its slogans (e.g., `the greatest thing to ever hit the earth') are puffery."

 

Nevertheless, the advertiser said that "out of deference to the process of industry self-regulation, GP Plastics will consider NAD's recommendations in future advertising and make appropriate modifications."

 

Separately, NAD said that CP--the challenger in this case--violated NAD procedures that bar the use of NAD decisions for promotional purposes. NAD found that the challenger's counsel disseminated the decision to third parties, including customers of GP Plastics, and that this dissemination was made before the public release of the decision by NAD. NAD procedures and participation agreement both note that parties are barred from using NAD decisions for promotional purposes.

 

(GP Plastics Corp., NAD Release, March 9, 2009, 2010.)

 

III. COMPARATIVE ADVERTISING–Here is a recent case involving this type of claim:

 

Campbell Soup Company. NAD recommended that Campbell Soup Company, the maker of Campbell's "Select Harvest" Soup, should modify or discontinue certain advertising claims for this product. NAD examined print and broadcast advertising--and product labeling--after a challenge by General Mills Inc., maker of Progresso soups.

 

The challenged claims included:

 

• "Unlike Progresso soups, new Campbell's Select Harvest soups never contain artificial flavors or MSG" (and variations of this claim).
• Progresso soups contain substantial amounts of MSG and other chemical-sounding ingredients (that are unwholesome, unhealthy and undesirable).
• Consumers can taste the MSG and other chemical-sounding ingredients in Progresso soups. • Campbell's Select Harvest soups taste better and more natural than Progresso soups.

 

NAD's conclusion: The challenged TV commercials did not convey the implied message that the advertiser's soups were more healthy or wholesome than the challenger's soups. However, NAD found that the commercials did convey a superior taste message unsupported by the evidence in the record. Accordingly, NAD recommended that the challenged commercials should be discontinued.

 

NAD also concluded that certain print ads could be reasonably interpreted as conveying a superior taste message, as well as the unsupported message that the advertiser's soups are more "wholesome."

 

NAD's recommendation: Such advertising should be modified to avoid conveying the unsupported message that the advertiser's soups are superior tasting or more flavorful than the challenger's soups and, where applicable, to avoid the implication that the advertiser's soups are healthier or more wholesome than the challenger's soups.

 

NAD also recommended that–

 

• certain advertising should be modified to clearly and explicitly limit the comparative claims so as to disclose the specific variety of soup compared in the ads.
• Campbell, in future advertising, should limit the tagline "Real Ingredients. Real Taste." to a non-comparative context.

 

Finally, as to the advertiser's "Lighter Than Light" comparative print ads, NAD recommended that to the extent that the advertiser desires to compare the nutritional content of the parties' respective soups, it modify the "Lighter Light Soup" ads to provide the calorie and sodium content for both parties' soups.

 

In its advertiser's statement, Campbell Soup said that the company "values the detailed analysis that NAD devoted to the introductory advertising for Select Harvest soups."

 

While the advertiser did not agree with certain of NAD's findings, Campbell said that it is–

 

"ever mindful of the responsibility food and beverage advertisers bear to be helpful to their consumers. Accordingly, we thank NAD for all of the recommendations it has made and will take these views into account in the development of our advertising."

 

(Campbell Soup Company, NAD Release, April 1, 2009, 2010.)

 

LAWYER's REFERENCE SERVICE

 

Dispoz-o, NAD Release, April 2, 2009, 2010.

 

GP Plastics Corp., NAD Release, March 9, 2009, 2010.

 

Campbell Soup Company, NAD Release, April 1, 2009, 2010.

 

By citing the NAD Reports, the Service in no way endorses or criticizes the NAD actions or findings.

 

# # #

 

Volume XXIX
Issue 8
April 20, 2009, 2010
Pages 29-32

 

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Advertising Compliance Service is a REFERENCE COMPENDIUM of JLCom Publishing Co., L.L.C.

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NOTICE: This publication is not intended to provide legal advice. Persons who need legal services should contact a duly licensed professional.

 

© Copyright 2009-2012 JLCom Publishing Co., L.L.C. All rights reserved.

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