Advertising & Labeling

Grey Goose and Belvedere Battle Over Vodka Ratings

The National Advertising Review Board (“NARB”) has ruled that advertisements claiming Grey Goose® Vodka is “Rated the No. 1 Tasting Vodka in the World” are deceptive because they provide “an unfair and inaccurate representation as to a competitor’s product, and did not provide consumers with a complete factual picture.” The case, brought by the importer of Belvedere® Vodka, did not claim that the 1998 Beverage Testing Institute (“BTI”) taste test showing Grey Goose on top of the ratings with a score of 96 was incorrect. Instead, Belvedere claimed that listing of its score of 74 was unfair because subsequent testing since 1998 by BTI showed Belvedere scoring 91 and 92.

The NARB decision recommends that Grey Goose’s importer, Sidney Frank Importing Company, either discontinue the comparative reference based on Belvedere’s score in the 1998 testing or include Belvedere’s most recent score. However, in a statement published by the JustDrinks.Com website, Sidney Frank said it would continue to use the advertising because the NARB decision conflicts with the policies of the BTI which prevent advertisers from making comparisons to different taste tests because such cross test comparisons are invalid. If the Grey Goose ads continue as written, the NARB can choose to ask the Federal Trade Commission or the Bureau of Alcohol, Tobacco and Firearms to enforce its decision.

Practice Note: Companies that choose to conduct comparative advertising campaigns must be vigilant to formulation changes by competitors or subsequent taste tests as those changes can make the advertised taste claim no longer valid. Please contact us if you have any questions on how to structure your comparative advertising claims.


Eggo Ad Runs Afoul of Children’s Advertising Guidelines

Kellogg discontinued a television commercial for its Eggo® Homestyle Waffles after the Children’s Advertising Review Unit (“CARU”) of the National Advertising Division (“NAD”) of the Better Business Bureau ruled that the theme of the commercial was inappropriate for young children. In the commercial, an adolescent boy eating the waffles bullies a puppet after the puppet commented, “It’s nice to share.” The CARU objected to the ad because the bullying behavior which included pushing the puppet under the table, tying the puppet’s shirtsleeves and shoelaces together, and pulling the puppet’s legs over his head, was easily duplicable by an older sibling to a younger one, thereby violating Principle 5 of its guidelines urging advertisers to portray beneficial social behavior.


FDA Rescinds Olestra Labeling Requirements

The FDA has repealed a seven year-old rule that required warning labels on products containing the zero calorie fat substitute Olestra®. Olestra was approved by the FDA in 1996 for use in savory snacks like potato chips, cheese puffs and crackers. Under the old rule, manufacturers were required to inform consumers that Olestra may cause abdominal cramping and loose stools in some individuals, that it inhibits the absorption of vitamins A, D, E and K and that these vitamins have been added to compensate for Olestra’s effects on these nutrients.

FDA changed its position based on a scientific review of post-market studies and adverse incident reports. The post-market studies showed that “real life” consumption of products containing Olestra caused only infrequent and mild gastrointestinal effects and that consumers were confused by the message contained in the warning.



New Labeling Regulations Coming Your Way

The National Academy of Science has released a report confirming earlier studies that trans fatty acids in food present a significant health risk for coronary disease. The publication of the report will probably cause the FDA to speed up issuance of its long pending proposal to require mandatory labeling of trans fatty acids.

Trans fat is created when vegetable oils are partially hydrogenated. An estimated 40% of all processed food products contain trans fatty acids including baked goods, snacks, candy, dairy products, and meat. The report concluded that there is no safe level for trans fat consumption and that trans fat had no positive dietary benefits.

The FDA published a proposed rule on trans fat labeling in November 1999. (The public comment period ended in 2000.) The rule is currently scheduled to be issued in final form by September 2003. Under the proposal, references to trans fat will have to be included in the “Nutrition Facts” required by the NLEA. The proposal also includes limits on both health and nutrition content claims based upon the amount of trans fat in a food. For example, a low cholesterol claim could only be made if a serving of a food contains 2 grams or less of saturated and trans fat combined instead of 2 grams or less of saturated fat as permitted by the current rule. Foods that have more than 4 grams of saturated and trans fat combined per serving could not make any on-label health claims. The labels could still make nutrient content claims, for example a “good” or “excellent” source claim if a special legend is included on the PDP.

The FDA believes that adoption of the proposed rule will prevent 6,300 to 12,800 cases of coronary heart disease annually and 2,100 to 4,200 deaths annually with much of the reduction resulting from food processors reformulating their products to reduce or eliminate trans fat from their ingredients.

Although one professor at the University of California Medical School has compared trans fat to nicotine, given the ubiquitousness of trans fat in the food supply an outright ban seems unlikely.

Undoubtedly, many manufacturers of food products containing trans fatty acids will now start to think a lot about the advantages and disadvantages of reformulating their products. Similarly manufacturer’s of products that contain little or no trans fatty acid may see the new labeling requirements as a marketing opportunity.

Zackler & Associates provides proactive expert legal advice on FDA, USDA and other labeling requirements as well as on and off label marketing issues. We can review with you how the proposed FDA trans fatty rule will affect the current labeling and marketing of your products and help you develop strategies to comply with the rules as well as use them to your commercial advantage whenever possible.