One of the core tenets of marketing law is that advertisers must ensure their ads are truthful and not misleading, or they risk facing the consequences enforced by regulatory authorities. Beyond the Federal Trade Commission and state attorney generals, advertisers must also adhere to NAD rulings on misleading ads.
The National Advertising Division (NAD) of the Better Business Bureau serves as an independent self-regulatory body, established to build consumer trust in advertising and promote fair competition within the marketplace. NAD rulings on misleading ads provide businesses and consumers with a structured forum to challenge claims made in commercials, print ads, and other promotional materials. These cases are reviewed in a quasi-courtroom setting, and if advertisers disagree with the decision, they can appeal to the National Advertising Review Board (NARB). Unless successfully appealed, NAD rulings on misleading ads are binding for its members, making it a crucial mechanism in maintaining advertising integrity.
Understanding NAD Rulings on Misleading Ads: The Impact of Humorous Comparisons
A recent decision from the NAD helps illustrate how the organization works to enforce the core precepts of marketing law. This particular case involved a challenge filed by General Mills against Promotion in Motion (“PIM Brands”), which owns a variety of snack brands, including Welch’s Fruit Snacks. General Mills took issue with a series of ads for Welch’s Fruit Snacks featuring curmudgeonly chef Gordon Ramsay, whose fiery temper and brutal criticism of contestants featured on his cooking shows have made him an international celebrity.
In the ads, Ramsay compares Welch’s Fruit Snacks to those offered by other brands in his signature style. In one commercial, he selects a box of “Fruit Flavored Snacks,” and angrily shouts that “there’s barely any fruit in there” before kicking it into a nearby lobster tank. In another, Ramsay spits a generic fruit-flavored snack back into the box after tasting it and then throws it out the window. In each commercial, Ramsay makes it clear that Welch’s Fruit Snacks are superior because they are “made with whole fruit as the main ingredient.”
General Mills filed an NAD challenge to the ads, alleging that they unfairly disparaged competing products by implying that all other fruit snacks are “worthless garbage” because their contents do not include “whole fruit” like Welch’s. In its defense, PIM Brands argued that, unlike competing products, Welch’s Fruit Snacks contain “at least 50% puree made from various whole fruits” and that its ads simply highlight “the distinctions between Welch’s Fruit Snacks and other products in an entertaining and humorous manner.”
In reaching its decision, the NAD stated that, while humor has long been used to highlight truthful distinctions between products, humorous ads should not communicate a message that falsely disparages competing products. In this case, the NAD found that Ramsay kicking the box of generic “Fruit Flavored Snacks” into the lobster tank, tossing them out the window, and spitting them out constitutes prohibited “ash canning,” on the part of PIM Brands, as the ads depict competing products as lacking any positive value and thus equivalent to garbage. The NAD ruled that PIM Brands should either discontinue the ads or modify them to avoid conveying the message that competing products are worthless.
Would anyone really interpret the Gordon Ramsay ads to be implying that all other fruit snacks are garbage? Reasonable minds can certainly differ on that topic, but one thing is certain. PIM Brands likely paid a colossal sum to Ramsay for him to draw a humorous distinction between Welch’s Fruit Snacks and other nameless products that might contain a lesser percentage of actual fruit. The hapless company was then forced to pay a similar sum to their attorneys to defend the ads before the NAD, only to be told to discontinue or modify them. Modifying the ads means writing another fat check to Ramsay, and if he’s no longer allowed to shout insults while tossing food across the room, what’s the point?
Held to a Higher Standard
The Welch’s Fruit Snacks case illustrates how an advertiser was unable to get away with a subtle dig at other fruit snack brands, even though it mentioned no names and cloaked the ads with humor. Meanwhile, in this and every other election season, candidates for public office regularly spew toxic lies about their opponents, the opposing party, the economy, and anything else that might further their own careers. Regardless of how absurd or destructive a falsehood may be, candidates can spout them all day long without so much as a legal wrist-slap.
That is the perversity of marketing law: Marketers are held to far higher standards than the people seeking to run our country and control our collective future. If you don’t think there’s something deeply wrong with that, then you should consider running for public office.
