Published Articles

April 15th, 2004

Planning to Advertise You’re “Better”?

In a decision that may come as a surprise to many advertisers who rely on "puffery" in order to tout their products as "better," the National Advertising Division of the Council of Better Business Bureaus ("NAD") recently recommended to General Mills that it discontinue making a claim in a free standing insert that its Progresso soups taste "better."

Is Progresso better?

In an FSI introducing three new varieties of soup, Progresso invited consumers, in a tagline, to "discover the better taste of Progresso!" Even though no competitors were mentioned, the Campbell Soup Company challenged the ad at the NAD, claiming that Progresso had made a superior taste claim that it could not back up.

The NAD is an advertising industry self-regulatory body that hears truth-in-advertising disputes, and then makes recommendations to advertisers about whether any modifications to the advertising are needed. Because of respect for the organization -- and because if you don’t follow the NAD’s recommendations, the NAD may refer your ad to the Federal Trade Commission ("FTC") or another government agency -- advertisers usually do what the NAD tells them to do.

Campbell’s argued to the NAD that Progresso’s advertising had previously used this "better" claim when comparing specific varieties of Progresso and Campbell’s soups. Since the "better" claim in the FSI is a "dangling" comparative -- a claim where the object of the comparison is not identified -- Campbell’s asserted that many consumers would assume that Progresso was again claiming that its soups are better than Campbell’s soups. Progresso responded that it had not intended, with the FSI, to compare its soups to any other products. Progresso argued that because no competitor was mentioned, consumers would understand the "better" statement to be just "puffery" or an invitation to try its new products.

The NAD concluded that Progresso’s advertising failed to answer the critical question -- "better than what"? The NAD determined that consumers may understand Progresso to be making a claim that its soups "taste better than other soups on the market." Therefore, the NAD decided that the advertising makes a comparative claim of taste superiority that requires proof. Because Progresso did not produce evidence to back up this claim, the NAD recommended that the claim, as it was used in the FSI, be discontinued. Although Progresso said that it disagreed with the NAD’s decision, it agreed to take the NAD’s concerns into account in its future advertising.

A better comparison?

If you make an objective statement in your advertising that a reasonable consumer will rely on when making a purchasing decision, the FTC requires that proof be obtained for the claim before it is used. (This standard is not universal; for example, some states hold advertisers to even higher standards.) No proof is typically required for "puffery," however, which is generally understood to be a subjective statement, not capable of being proven, on which consumers are not likely to rely.

A key trap to watch out for is that proof usually must be obtained for all claims that consumers reasonably take away. The trouble that Progresso ran into here is that because the "better" claim is ambiguous, the NAD held Progresso responsible for a claim that it says it had not even intended to make. In order to avoid any confusion, the NAD recommends that advertisers clearly and conspicuously disclose the object of the comparison in any advertisement using comparative terms.

When making a comparative claim, ask yourself whether the comparison is clear. How will consumers interpret the comparison? If multiple understandings are possible, you may end up being expected to have proof for all of them. If you are looking to reduce the risk of getting challenged, make the comparison specific, and then make sure there is proof to back it up. Who knows, it may even make the advertising "better."

- Jefrrey A. Greenbaum

This article first appeared in the May 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.