NARB Panel #140
March 13, 2007
For full text of Panel Report #140 (PDF format) click here
Appeal of NAD Final Decision Regarding Advertising for Malt-O-Meal Company
Background
This case arose from a challenge filed by General Mills, Inc. ("General Mills") concerning claims made by the Malt-O-Meal Company ("Malt-O-Meal") on product packaging and in print advertising for its cereals.
NAD found that Malt-O-Meal's claim "Betcha Can't Taste the Difference," as used on its packaging and in advertising to compare various Malt-O-Meal cereals to those of other manufacturers, would be perceived by reasonable consumers as implying that the taste of Malt-O-Meal cereals was the same as the cereals that were the object of the comparison. NAD found that Malt-O-Meal did not have sufficient substantiation for this claim, and recommended that it be either discontinued or modified.
Findings and Conclusions
The panel agreed with NAD that Malt-O-Meal's tests were sufficiently flawed and that they did not provide adequate substantiation for the claims at issue. The most significant flaw is the provision of sugar in tests of pre-sweetened cereal pursuant to a test methodology that instructs consumers to add sugar as desired.
The panel also agrees with NAD that provision of only 2% milk could compromise the test results for consumers who do not regularly use 2% milk in their cereal.
While the panel recognized NAD concerns over use of "agree/disagree" questions, and the lack of a "no response" option, the panel did not believe that the record was complete enough to permit a determination as to whether these were material flaws in Malt-O-Meal's testing. There is an ongoing debate in the testing community, as highlighted in relevant ASTM standards, as to the necessity of providing a "no response" option. The panel also recognizes there is disagreement in the cited literature about the prevalence of a "yea-saying" bias.
General Mills submitted independent consumer taste tests comparing three of the Malt-O-Meal cereals at issue with their General Mills counterparts. Results of those tests indicated not parity but rather that consumers preferred the General Mills products. While the panel does not need to rely on the General Mills tests, since Malt-O-Meal did not meet its initial burden to provide substantiation of the parity claims, the panel notes that the General Mills tests appear to be better designed than the Malt-O-Meal tests and provide additional support for the panel's conclusions in this case.
In summary, the panel found that Malt-O-Meal's testing was sufficiently flawed as to not provide a reasonable basis for the parity claims advertised by Malt-O-Meal. Since this testing was the only substantiation provided in support of its parity claims, the panel agrees with NAD that the parity claims were not substantiated.
Decision
The panel recommended that Malt-O-Meal either discontinue its claim, "Betcha Can't Taste the Difference," or modify the claim so that (1) the "Betcha" phrase and guarantee are in close proximity to each other and are part of the same thought, and (2) the guarantee is inextricably linked to the "bet" the advertiser is making about its product.
The panel also recommended that Malt-O-Meal discontinue claims that specific Malt-O-Meal products are as good, taste as good, taste the same, or are liked as much as the competing products they are targeted to match.
Panel #140, NARB Board Members:
- Dr. Jan LeBlanc Wicks (Chair), Professor, University of Arkansas
- Abby Elu, Manager, Learning & Development Global Advertising Services, Campbell Soup Company
- David E. Grueneberg, Director of Advertising Resources, Bristol-Myers Squibb Company
- Robin Hafitz, Chair, Open Mind Strategy
- Elaine Lawson, Senior Manager - National Marketing, Verizon Communications
NARB Panel #141
March 14, 2007
For full text of Panel Report #141 (PDF format) click here
Appeal of NAD Final Decision Regarding Advertising for Perdue Farms Incorporated
Background
This case arose from a challenge filed by Kraft Foods Global, Inc. ("Kraft") concerning claims made by Perdue Farms Incorporated ("Perdue") on labels and in print advertising for Perdue Short Cuts poultry products.
NAD found that use of the phrase "no preservatives" was inconsistent with consumers' reasonable expectations because Perdue Short Cuts poultry products contain two ingredients that are used as preservatives. NAD similarly found that use of the phrase "Fresh Fully Cooked" was inconsistent with consumers' reasonable expectations because the products contained preservatives and were subject to high pressure processing.
Findings and Conclusions
The panel has determined that the "no preservative" claim would be reasonably interpreted by consumers as confirming the absence of any ingredients that have an antimicrobial effect as used in that product, even if that effect is secondary to other ingredient attributes.
FSIS regulations set the same limits for sodium diacetate when it is used as a flavoring agent or an antimicrobial agent. Additionally, the regulations do not specify a minimum concentration level at which sodium diacetate or sodium lactate may be used as antimicrobial agents. Perdue conceded that, even in the 2.0% or lower concentrations found in Perdue Short Cuts poultry products, sodium diacetate and sodium lactate have "secondary" antimicrobial effects. The panel believes that reasonable consumers would not expect to have these ingredients in a product labeled as having no preservatives, even if these ingredients could be used at higher concentration levels to achieve greater antimicrobial effect.
The panel considered use of the word "fresh" in the context in which it appears on Perdue's labels, with the additional description that the product is "fully cooked."
NAD precedent indicates that reasonable consumers are likely to interpret "fresh" as meaning that a food is unprocessed and has not been frozen or subjected to other forms of preservation. In this proceeding, no consumer perception evidence was submitted with regard to how consumers reasonably interpret "fresh fully cooked." The panel believes that reasonable consumers would likely interpret this phrase as meaning that the product was fresh at the time it was cooked and was not subjected to processing other than whatever was involved in cooking. The panel agrees with NAD in this case that reasonable consumers would likely interpret "fresh fully cooked" as meaning that the product does not contain preservatives, and also that the product was not subject to processing such as the high pressure processing used as part of Perdue's efforts to decrease the growth of pathogens.
Decision
The panel recommended that Perdue discontinue use of the terms "no preservatives" and "fresh" on meat and poultry products that contain sodium diacetate and/or sodium lactate in concentrations sufficient to have any antimicrobial effects. The panel also recommended that Perdue discontinue use of the term "fresh" on meat and poultry products that have been subjected to high pressure processing.
Panel #141, NARB Board Members:
- John Kamp (Chair), Executive Director, Coalition for Healthcare Communications
- Jack Haber, Vice President, E-Business, Colgate-Palmolive Company
- Robin Hafitz, Chair, Open Mind Strategy
- Michael Scherb, Director, Corporate Advertising and Branding, PSE&G
- Mark Wolf, Manager, Market Research, Guardian Life Insurance Company of America
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With this publication of the NARB Quarterly, we would like to welcome all of our new NARB members and to thank those retiring NARB veterans who have served us so well.